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AND  SKLLCRS  OF 

VW  BOOKS 

SAN   FRANCISCO 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE 

VALIDITY 


OF 


RATE  REGULATIONS 

STATE  AND  FEDERAL 


BY 

ROBERT   P.    REEDER 

OF    THE    PHILADEXPHIA    BAB. 


PHILADELPHIA 

T.  &  J.  W.  JOHNSON  CO. 

I9I4 


COPYBIGHT,    1914 
BY 

T.  &  J.  W.  JOHNSON  CO. 


T 
19/4- 


PREFACE. 


This  book  deals  with  the  principles  of  constitutional 
law  which  are  involved  in  rate  regulation.  It  states  the 
decisions  in  the  rate  cases  themselves ;  and  it  also  goes  into 
a  broader  discussion  of  the  purposes  of  those  who  placed 
in  the  Federal  Constitution  the  provisions  which  bear 
upon  rate  regulation.  Such  a  discussion  is  necessary  in 
view  of  the  condition  of  the  authorities  and  the  import- 
ance of  the  issues  involved. 

R.  P.  R. 

Philadelphia,  October,  1913. 


HN  «n)  fr  r-i  ja   a 


OUTLINE. 


(Detailed  Table  of  Contents  Follows.) 

THE  COMMERCE  CLAUSE. 

Introductory. 

Implied  restraint  on  the  states. 

Interstate  rates. 

Local  rates. 

Separate   intrastate  transportation  of  persons  or   goods  coming  from  or 

destined  to  another  state. 
Charters  and  contracts. 
Interstate  and  intrastate  highways. 

THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

Introductory. 

Extent  of  power  of  legislature. 

Limited  power  of  administrative  organs. 

Delegation  of  power  by  legislature. 

Extent  of  power  of  courts. 

THE  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Introductory. 

The  "persons"  protected. 

The  organs  of  government  restrained. 

The  extent  of  the  restraint. 

THE  DUE  PROCESS  CLAUSES— DISCUSSION. 

Introductory. 

Is  the  provision  necessarily  a  substantive  restraint? 

The  law  of  the  land. 

The  argument  concerning  redundancy. 

Discrimination. 

Constitutional  and  extra-constitutional  restraints. 

Reasonableness. 

Just  compensation. 

Text  and  context. 

Conclusion. 

THE  EQUAL  PROTECTION  PROVISION. 

Introductory. 

General  extent  of  restraint. 


Vi  OUTLINE. 

Bearing  of  provision  on  rate  regulation. 

Excessive  penalties. 

Reasonableness  and  just  compensation. 


JUST  COMPENSATION. 


Introductory. 
Amount  of  return. 
Value  of  property. 
Operating  expenses. 
Net  earnings. 
Exceptional  conditions. 
Particular  rates. 


THE  IMPAIRMENT  OF  CONTRACTS. 


Introductory. 
"Laws"  forbidden. 
Contracts  protected. 
Interpretation  of  contracts. 
Limitations  upon  power  to  contract. 
Power  to  alter,  amend  or  repeal. 

PREFERENCES  TO  PORTS. 

Introductory. 

Organs  of  government  restrained. 

Bearing  on  rate  regulation. 

LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

Suits  against  the  government. 

Enforcement  of  law. 

Decision  of  constitutional  questions. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 
THE  COMMERCE  CLAUSE. 

SEC.  INTKODUCTORY.  page. 

1.  Scope  of  chapter 2 

IMPLIED  RESTRAINT  ON  THE  STATES. 

2.  General  principles    3 

3.  Position  of  Supreme  Court  5 

4.  Reasons  for  position  examined   6 

5.  Bearing  of  position  upon  rate  regulation   7 

INTERSTATE  RATES. 

6.  General  principles    8 

7.  Instances  of  interstate  rates  9 

8.  Legislation  and  the  common  law    12 

9.  State  laws  "affecting  but  not  regulating"  interstate  commerce  . .  12 

LOCAL  RATES. 

10.  What  are  local  rates  ?  15 

11.  Local  rates  which  affect  interstate  rates  indirectly  17 

12.  Local  rates  which  affect  interstate  rates  directly  19 

SEPARATE     INTRASTATE     TRANSPORTATION     OF     PERSONS  OR 
GOODS  COMING  FROM  OR  DESTINED  TO  ANOTHER  STATE. 

13.  The  problem    21 

14.  The  test   22 

15.  Tax  and  original  package  cases   23 

16.  Some  rates  under  local  bills  subject  to  federal  control 25 

17.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas  28 

18.  Is  the  existence  of  separate  contracts  conclusive  ?   29 

19.  Undisclosed   intentions    30 

20.  Auxiliary   services    32 

CHARTERS  AND  CONTRACTS. 

21.  Waiver  of  constitutional  rights,  expressly  and  by  implication  ...  36 

22.  Express  waiver  of  constitutional  rights   38 

vii 


VIU  TABLE  OF  CONTENTS. 

„^       INTERSTATE  AND  INTRASTATE  HIGHWAYS.      „,^,^ 

SEC.  PACIE. 

23.  Decisions  concerning  navigation    42 

24.  Discussion    44 

25.  Safety  appliance  cases   45 


CHAPTER  II. 

THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

INTRODUCTORY. 

26.  Distribution  among  three  departments  of  government 47 

27.  Federal  and  state  problems  distinct  but  similar   47 

28.  Exceptions  to  broad  general  rules    48 

29.  Distribution  of  powers  not  complete   49 

30.  Local  self-government  50 

EXTENT  OF  POWER  OF  LEGISLATURE. 

31.  General  extent  of  power    52 

32.  Power  to  establish  rates   55 

33.  Power  to  change  common  law   56 

34.  Position  of  court  on  rate-making 58 

35.  Power  to  enact  detailed  regulations   59 

36.  Some  powers  may  be  entrusted  by  legislature  to  other  departments  60 

37.  LIMITED  POWER  OF  ADMINISTRATIVE  ORGANS.  62 

DELEGATION  OF  POWER  BY  LEGISLATURE. 

38.  General    principles     62 

39.  Outline  of  position  taken   66 

40.  Discussion  of  state  and  federal  authorities  on  rate-making   67 

41.  Discussion  of  position  of  Supreme  Court  on  rate-making 72 

42.  Decisions  of  Supreme  Court  on  delegation  of  power 76 

43.  Ascertainment  of  facts   81 

44  Contingent  legislation — bearing  on  general  principles   86 

45.  Contingent  legislation  as  to  rates   91 

46.  Grants  of  discretion    94 

47.  Possible  differences  in  extent  and  character  of  regulation 98 

48.  Do  the  statutes  establish  definite  principles?   101 

EXTENT  OF  POWER  OF  COURTS. 

49.  General  principles   105 

50.  Distinction  between  judicial  and  legislative  power  over  rates  ....  106 

51.  Judicial  review  of  administrative  orders  establishing  rates 110 


TABLE   OF    CONTENTS.  IX 

CHAPTER  III. 

THE  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

INTRODUCTORY.  _._„ 

SEC.  PAGE. 

52.  The  clauses   stated    114 

53.  Clauses  relate  to  different  governments   115 

54.  Presumption  that  in  other  respects  clauses  have  same  meaning  . .  116 

55.  Possible  points  of  difference  are  ignored  by  the  court 117 

56.  Importance  of  understanding  the  provision   118 

57.  THE   "PERSONS"   PROTECTED.  120 

THE  ORGANS  OF  GOVERNMENT  RESTRAINED. 

58.  Fourteenth  Amendment  restrains  states  and  their  organs  of  gov- 

ernment      121 

59.  Fifth  Amendment  restrains  organs  of  federal  government 126 

60.  Organs  for  establishing  limitations  upon  rates  127 

THE  EXTENT  OF  THE  RESTRAINT. 

61.  The  proper  scope  of  the  provision   129 

62.  The  position  of  the  court  130 

63.  A  suitable  procedure  130 

64.  Procedure  in  establishing  limitations  upon  rates  135 

65.  Procedure  in  enforcing  limitations  upon  rates   136 

66.  Provision  regarded  as  a  substantive  restraint 138 

67.  No  complete  general  statement  as  to  restraint 140 

68.  Particular   lines  of  decision    142 

69.  Detailed  application  of  rules   144 

70.  Different  tests  of  constitutionality   144 

CHAPTER  IV. 
THE  DUE  PROCESS  CLAUSES— DISCUSSION. 

INTRODUCTORY. 

71.  Scope  of  chapter    149 

IS  THE  PROVISION  NECESSARILY  A  SUBSTANTIVE 
RESTRAINT? 

72.  Position  taken  in  Hurtado  v.  California   150 

73.  Are  all  organs  of  government  necessarily  restrained  ?   152 

74.  The  significance  of  the  word  "state"    154 

75.  Is  the  restraint  necessarily  more  than  procedural?  156 


X  TABLE  OF  CONTENTS. 

„^  THE  LAW  OF  THE  LAND.  „,„„ 

SBC.  PAOK. 

76.  "Due  process"  and  "law  of  the  land"  provisions  are  akin 159 

77.  The  "law  of  the  land"  in  England 160 

78.  "Due  process  of  law"  in  England   162 

79.  The  provisions  compared    163 

80.  The  term  "law  of  the  land"  sometimes  used  in  broader  sense  ....  164 

81.  Term  has  same  general  scope  in  America  as  in  England 165 

82.  How  may  the  "law  of  the  land"  be  changed  ? 165 

83.  The  Constitution  does  not  make  the  "law  of  the  land"  unchange- 

able      167 

84.  The  "law  of  the  land"  may  be  different  in  the  several  states 168 

85.  Judicial  alteration  of  the  "law  of  the  land"  169 

THE  ARGUMENT  CONCERNING  REDUNDANCY. 

86.  The  question  stated    171 

87.  The  question  elaborated 172 

88.  Discussion  of  question  of  redundancy    174 

DISCRIMINATION. 

89.  Position  of  court  on  discriminatory  state  action  176 

90.  Position  of  court  on  fraud  and  improper  motives   178 

91.  Discussion    , ^ .  180 


CONSTITUTIONAL  AND   EXTRA-CONSTITUTIONAL   RESTRAINTS. 

92.  Inconsistent  positions  taken    182 

93.  Power  to  declare  governmental  action  unconstitutional   185 

94.  General  duty  to  enforce  legislation   188 

95.  Passing  upon  the  wisdom  or  justice  of  governmental  action 189 

96.  The   Ninth   Amendment    192 

97.  Rule  stated  in  Twining  v.  New  Jersey  193 

98.  Extra-constitutional  restraints  and  rights    194 

99.  Inalienable   rights    195 

100.  Natural  justice,  natural  rights  196 

101.  Fundamental   rights    197 

102.  "Essential  nature  of  all  free  governments"   201 

103.  Discussion   on   inalienable  rights,   etc 202 

104.  Scope  of  governmental   authority    203 

REASONABLENESS. 

105.  Unreasonable  or  arbitrary  governmental  action    207 

106.  Unnecessary  governmental   action    212 

107.  Nature  of  opinions  upon  these  subjects   213 

108.  Relevancy  of  decisions  on  reasonableness  of  ordinances 213 

109.  Reasonable  exercises  of  police  power   215 

110.  Meaning  of  term   "police  power"    216 


TABLE  OF  CONTENTS.  XI 

SEC.  PAGE. 

111.  Relevancy  of  decisions  on  police  power   219 

112.  Is  a  change  of  law  a  "deprivation?"   220 

113.  Summary  as  to  police  power   221 

114.  Reasonableness  and  natural  justice  222 

115.  Massachusetts  decisions    222 

116.  Position  of  court  as  to  arbitrary  governmental  action 223 

117.  Discussion  of  position    224 

118.  Reasonableness   of   rate   regulations    226 

JUST  COMPENSATION. 

119.  The  position  of  the  court   229 

120.  Dicta   in   earliest   cases    230 

121.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  231 

122.  Kaukauna  and  Yesler  cases    233 

123.  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago   235 

124.  The  taking  of  property  for  private  use   238 

125.  Later   cases    240 

126.  General  comment  on  position  of  court 241 

TEXT  AND  CONTEXT. 

127.  The  significance  of  the  context   242 

128.  The  true  meaning  of  the  term  "liberty"    243 

129.  The  position  of  the  court  on  the  term  "liberty"  245 

130.  Allgeyer   v.   Louisiana    246 

CONCLUSION. 

131.  Position  of  court  criticized   248 

132.  Should  the  court  now  take  the  correct  position?   250 


CHAPTER  V. 
THE  EQUAL  PROTECTION  PROVISION. 

INTRODUCTORY. 

133.  The  clause  stated   251 

134.  The  organs  of  government  restrained   251 

135.  The  "persons"  protected   252 

GENERAL  EXTENT  OF  RESTRAINT. 

136.  Clause  forbids  some  state  actions  as  well  as  omissions  to  act  ....  252 

137.  Discrimination   which    is   forbidden    253 

138.  Illustrations    255 

139.  Classification  which  is  permitted   256 

140.  Wide  range  of  legislative  discretion   258 


Xll  TABLE   OF    CONTENTS. 

„^  BEARING  OF  PROVISION  ON  RATE  REGULATION.         „.„„ 

SEC.  PAGE. 

141.  In  general    261 

142.  Power  to  limit  rates  261 

143.  Classification  of  railroads  for  rate  regulation   262 

144.  Other  regulations  of  railroads   264 

145.  EXCESSIVE  PENALTIES.  264 

146.  REASONABLENESS  AND  JUST  COMPENSATION.  266 


CHAPTER  VI. 
JUST  COMPENSATION. 

INTRODUCTORY. 

147.  Provision  in  Fifth  Amendment    269 

148.  Due  process  and  just  compensation    269 

149.  Equal  protection  and  just  compensation  269 

150.  Bearing  of  requirement  upon  rate  regulation 270 

151.  Unreasonable  or  discriminatory  regulations   270 

162.  Not  enforcing  common  law   271 

153.  Indemnification  by  government  so  far  as  reductions  are  undue  . .  271 

154.  AMOUNT  OF  RETURN.  272 

VALUE  OF  PROPERTY. 

155.  Present  value  of  property 273 

156.  Cost  and  capitalization  not  to  be  considered   275 

157.  Producing  plant  equally  eflScient   278 

158.  Significance  of  term  "present  time"    281 

159.  Tangible  property    282 

160.  Cost  of  corporation  itself 285 

161.  Cost  of  business  of  corporation    285 

162.  Capitalization  of  earning  capacity   287 

163.  Stock  and  bonds    289 

164.  Value   as  system    290 

165.  Apportionment  of  value   291 

166.  Particular  classes  of  trafiic 295 

167.  Unprofitable  parts  of  the  property   296 

168.  Smyth  v.  Ames  criticized    298 

169.  Rough  estimates  of  value   300 

170.  Summary  as  to  value   301 


TABLE   OF   CONTENTS.  xiii 

OPERATING  EXPENSES.  „.„„ 

SEC.  PAGE. 

171.  General  principles    302 

172.  Transportation    303 

173.  Maintenance    305 

174.  Payments  to  stockholders  and  bondholders   307 

NET  EARNINGS. 

175.  What  earnings  are  to  be  considered   308 

176.  Proving  amount  of  earnings   309 

177.  Rates  fair  to  public   809 

178.  Rates  fair  to  railroad  310 

179.  Constitutional  rate  of  return 311 

180.  No  particular  rate  fixed  by  Supreme  Court   313 

181.  Other  decisions   in  conflict    315 

182.  Distribution  between  stockholders  and  bondholders   317 

183.  EXCEPTIONAL  CONDITIONS.  318 

PARTICULAR  RATES. 

184.  Decisions  that  only  schedule  as  entirety  may  be  considered 320 

185.  Decisions  on  particular  rates    324 

186.  Discussion  on  considering  merely  schedule  as  entirety 325 

187.  Mileage  books   327 


CHAPTER  VII. 
THE  IMPAIRMENT  OF  CONTRACTS. 

INTRODUCTORY. 

188.  The  clause  stated    329 

"LAWS"  FORBIDDEN. 

189.  In  general    329 

190.  Rule  as  to  judicial  decisions  332 

191.  CONTRACTS  PROTECTED.  334 

INTERPRETATION  OF  CONTRACTS. 

192.  Contractural  limitations  upon  governmental  power  over  rates  .  .  .    335 

193.  Governmental  power  not  limited  by  mere  implication 337 

194.  Parties  exempted    339 


Xiv  TABLE   OF   CONTENTS. 

gg^  LIMITATIONS  UPON  POWER  TO  CONTRACT.  ^^^^ 

195.  In    general     340 

196.  Contracts  with  luunicipalities   340 

197.  Contracts  between  state  and  carrier   343 

198.  Contracts  between  carriers  or  between  carrier  and  patron 344 

199.  POWER  TO  ALTER,  AMEND  UR  REPEAL.  345 


CHAPTER  VIII. 
PREFERENCES  TO  PORTS. 

INTRODUCTORY. 

200.  The  provision    348 

201.  ORGANS  OF  GOVERNMENT  RESTRAINED.  348 

BEARING  ON  RATE  REGULATION. 

202.  In    general    349 

203.  Differentials    350 


CHAPTER  IX. 
LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

SUITS  AGAINST  THE  GOVERNMENT. 

204.  General  rule    353 

205.  What  governments  come  within  the  rule 356 

206.  Suits  against  public  oflBcials  356 

ENFORCEMENT  OF  LAW. 

207.  Indictment     359 

208.  Putting  twice  in  jeopardy   359 

209.  Due  process  of  law   360 

210.  Trials  in  criminal  cases   361 

211.  Suits  at  common  law   363 

212.  Self-incrimination    364 

213.  Unreasonable  searches  and  seizures  367 

214.  Other  testimony 368 

215.  Punishment    368 


TABLE   OF    CONTENTS.  XV 

„_  DECISION  OF  CONSTITUTIONAL  QUESTIONS. 

SIC.  PAGE. 

216.  Questions  which  may  be  brought  before  the  court 369 

217.  Rules  of  construction   372 

218.  Partial  unconstitutionality    375 


CHAPTER  I. 

THE  COMMERCE  CLAUSE. 

INTRODUCTORY. 

1.  Scope  of  chapter. 

IMPLIED  RESTRAINT  ON  THE  STATES. 

2.  General  principles. 

3.  Position  of  Supreme  Court. 

4.  Reasons  for  position  examined. 

5.  Bearing  of  position  upon  rate  regulation. 

INTERSTATE  RATES. 

6.  General  principles. 

7.  Instances  of  interstate  rates. 

8.  Legislation  and  the  common  law. 

9.  State  laws  "affecting  but  not  regulating"  interstate  commerce. 

LOCAL  RATES. 

10.  What  are  local  rates? 

11.  Local  rates  which  affect  interstate  rates  indirectly. 

12.  Local  rates  which  affect  interstate  rates  directly. 

SEPARATE     INTRASTATE     TRANSPORTATION     OF     PERSONS     OR 
GOODS  COmNG  FROM  OR  DESTINED  TO  ANOTHER  STATE. 

13.  The  problem, 

14.  The  test. 

15.  Tax  and  original  package  cases. 

16.  Some  rates  under  local  bills  subject  to  federal  control. 

17.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas. 

18.  Is  the  existence  of  separate  contracts  conclusive? 

19.  Undisclosed  intentions. 

20.  Auxiliary  services. 

CHARTERS  AND  CONTRACTS. 

21.  Waiver  of  constitutional  rights,  expressly  and  by  implication. 

22.  Express  waiver  of  constitutional  rights. 

INTERSTATE  AND  INTRASTATE  HIGHWAYS. 

23.  Decisions  concerning  navigation. 

24.  Discussion. 

25.  Safety  appliance  cases. 


2  THE    COMMERCE    CLAUSE. 

INTRODUCTORY. 

Scope  of  chapter. 

1.  The  Federal  Constitution  in  the  eighth  section  of 
Article  I  empowers  Congress  ' '  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  states  and  with 
the  Indian  tribes."  This  provision  we  shall  consider  so 
far,  though  only  so  far,  as  it  affects  governmental  regula- 
tion of  railroad  charges  for  either  interstate  transporta- 
tion or  local  transportation.^ 

By  virtue  of  this  provision  Congress  may  unquestion- 
ably limit  the  charges  for  transportation  which  is  strictly 
interstate.^  And,  on  the  other  hand,  it  is  clear  that  the 
states  may  regulate  commerce  which  is  not  interstate  or 
foreign  or  with  the  Indian  tribes,  for  the  states  have  all 
governmental  powers  except  those  of  which  they  have 
been  deprived  by  the  Federal  Constitution.^ 

But  those  simple  statements  leave  unanswered  several 
important  questions.  Have  the  states  any  authority  over 
interstate  rates  and  has  Congress  any  authority  over  local 
rates?     What  are  interstate  rates,  and  what  are  local 

1  As  to  commerce  with  the  territories  see  Interstate  Com.  Comn.  v.  United 
States  ex  rel.  Humboldt  S.  Co.  (1912)  224  U.  S.  474,  32  Sup.  Ct.  556,  56 
L.  ed.  849;  Stoutenburgh  v.  Hennick  (1889)  129  U.  S.  141,  9  Sup.  Ct.  256, 
32  L.  ed.  637;  Hanley  v.  Kansas  C.  S.  Ry.  Co.  (1903)  187  U.  S.  617,  23  Sup. 
Ct.  214,  47  L.  ed.  333;  El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez  (1909)  215  U.  S. 
87,  30  Sup.  Ct.  21,  54  L.  ed.  106;  Missouri,  K.  &  T.  Ry.  Co.  v.  Bowles  (1897) 
1  Ind.  Terr.  250,  40  S.  W.  899.  As  to  foreign  commerce  see  Act  June  29, 
1906,  sees.  1,  2,  34  U.  S.  Stats,  at  L.  584,  586;  Texas  &  N.  0.  R.  Co.  v.  Sabine 
T.  Co.  (1913)  227  U.  S.  Ill,  33  Sup.  Ct.  229,  57  L.  ed.  442;  The  Abby  Dodge 
(1912)  223  U.  S.  166,  32  Sup.  Ct.  310,  56  L.  ed.  390;  United  States  v.  Nord 
Deutscher  Lloyd  (1912)  223  U.  S.  512,  32  Sup.  Ct.  244,  56  L.  ed.  531; 
United  States  v.  Hamburg  A.  P.  F.  A.  G.  (1911)  200  Fed.  806;  American 
B.  Co.  V.  United  F.  Co.  (1909)  213  U.  S.  347,  29  Sup.  Ct.  511,  53  L.  ed.  826. 

2  See  sec.  6,  infra. 

3  This  would  be  true  even  if  the  Tenth  Amendment  had  never  been 
adopted.  See  The  Federalist,  Nos.  32,  82;  Kansas  v.  Colorado  (1907)  206 
U.  S.  46,  89,  90,  27  Sup.  Ct.  055,  664,  51  L.  ed.  950. 


IMPLIED  RESTRAINT  ON  THE  STATES.  3 

rates?  And,  finally,  are  there  any  exceptions  or  limita- 
tions, other  than  those  which  are  due  to  other  provisions 
of  the  Constitution,  to  the  powers  of  the  respective  gov- 
ernments over  charges  for  transportation  ?  Those  are  the 
questions  which,  in  one  form  or  another,  we  shall  con- 
sider in  the  present  chapter. 

IMPLIED  RESTRAINT  ON  THE  STATES. 

General  principles. 

2.  And,  first,  have  the  states  any  authority  over  inter- 
state commerce?  Originally  they  had  complete  authority 
over  it,  but  since  the  adoption  of  the  Constitution  Con- 
gress has  had  power  to  regulate  such  commerce,  and,  of 
course,  when  Congress  exercises  a  power  which  has  been 
granted  to  it  by  the  Constitution  any  state  law  which  is 
inconsistent  with  the  act  of  Congress  must  give  way.^ 
But  if  there  is  no  federal  statute  which  covers  the  matter 
regulated  and  is  inconsistent  with  state  legislation,  is  a 
state  law  which  regulates  interstate  commerce  unconsti- 
tutional merely  because  Congress  has  power  to  regulate 
such  commerce? 

It  is  submitted  that  the  court  should  hold  that  the 
commerce  clause  does  not  prohibit  state  legislation  under 
those  circumstances— that  a  mere  gTant  of  power  to  the 
federal  government  does  not  render  it  unconstitutional 
for  a  state  to  exercise  that  power  if  the  state  law  is  not 
inconsistent  with  any  federal  law.  In  support  of  this  po- 
sition is  the  fact  that  in  several  cases  where  power  is 

4  "This  Constitution  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  thr- 
land;  and  the  judges  in  every  state  shall  be  bound  thereby,  anything  in  thi< 
constitution  or  laws  of  any  state  to  the  contrary  notwithstanding:"  Article 
VI,  clause  2.    See  also  note  24,  infra. 


4  THE    COMJVIERCE    CLAUSE. 

granted  to  the  federal  government  by  the  Constitution 
there  are  also  other  provisions  of  the  Constitution  which 
expressly  forbid  the  states  to  exercise  such  powers.  This 
is  true  concerning  the  coinage  of  money,^  the  granting  of 
letters  of  marque  and  reprisal,^  and  the  making  of  treat- 
ies."^ And  the  powers  of  the  states  to  lay  duties  ^  and  tc 
engage  in  war^  are  limited  in  express  terms.^^  Yet  the 
grant  to  Congress  of  power  over  interstate  commerce  is 
not  accompanied  by  any  clause,  except  the  one  referring 
to  duties  on  tonnage,^^  which  prohibits  the  states  to  exer- 
cise that  power  over  interstate  commerce  which  they  pos- 
sessed before  the  Constitution  was  adopted.  And  the  fact 
that  it  was  thought  necessary  to  state  in  express  terms 
those  restraints  upon  state  action  which  have  been  named 
goes  to  show  that  in  the  absence  of  express  restraints 
upon  the  states  the  powers  which  have  been  granted  to 
Congress  should  be  regarded  as  simply  paramount,  and  it 
goes  veiy  far  towards  proving  that  in  the  absence  of  in- 

5  For  grant  to  Congress  see  Article  I,  sec.  8,  cl.  5 ;  for  prohibition  on 
states  see  Article  I,  sec.  10,  cl.  1. 

6  For  grant  to  Congress  see  Article  I,  sec.  8,  cl.  11;  for  prohibition  on 
states  see  Article  I,  sec.  10,  cl.  1. 

7  The  President  "shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 
concur:"  Article  II,  sec.  2,  cl.  2.  For  prohibition  on  states  see  Article  I, 
sec.  10,  cl.  1 ;  and  see  also  cl.  3. 

8  For  grant  to  Congress  sec  Article  I,  sec.  8,  cl.  1,  which  is  limited,  of 
course,  by  provisions  in  sec.  9  of  that  Article.  For  limitations  on  states  see 
Article  I,  sec.  10,  clauses,  2,  3. 

8  For  grant  to  Congress  see  Article  I,  sec.  8,  cl.  11;  for  prohibition  on 
states  see  Article  I,  sec.  10,  cl.  3. 

10  See  also  Article  I,  sec.  8,  cl.  17,  where  the  power  of  Congress  to  legislate 
for  the  District  of  Columbia  is  expressly  declared  to  be  exclusive. 

11  Article  I,  sec.  10,  cl.  3.  The  provision  as  to  "imports"  in  cl.  2  of  that 
section  refers  only  to  foreign  commerce:  American  S.  &  W.  Co.  v.  Speed 
(1904)   192  U.  S.  500,  24  Sup.  Ct.  365,  48  L.  ed.  538. 


IMPLIED  RESTRAINT  ON  THE  STATES.  5 

consistent  federal  legislation  state  laws  upon  those  sub- 
jects should  be  sustained.^  ^ 

Position  of  Supreme  Court. 

3.  The  United  States  Supreme  Court,  however,  does  not 
take  this  position.  It  declares  that  in  some  matters  Con- 
gress has  sole  power  ^^  over  interstate  commerce,  although 
it  admits  that  in  other  matters  Congress  has  simply  para- 
mount power  over  that  commerce.  It  holds  that  in  some 
cases  uniformity  of  regulation  is  essential  and  in  those 
cases  Congress  alone  may  legislate,  while  in  other  in- 
stances uniformity  of  regulation  is  not  essential  and  the 
states  may  legislate  in  the  absence  of  conflicting  federal 
legislation.^^     And  incidentally  it  holds  that  the  court 

12  See  The  Federalist,  Nos.  32,  82 ;  and  dissenting  opinions  of  Daniel,  J., 
and  Woodbury,  J.,  in  Passenger  Cases  ( 1849)  7  How.  283,  497,  532,  554,  564, 
12  L.  ed.  702 ;  and  also  the  opinion  of  the  court  in  The  Hamilton  ( 1907 )  207 
U.  S.  398,  404,  sub  nom.  Old  D.  S.  Co.  v.  Gilmore,  28  Sup.  Ct.  133,  134,  52 
L.  ed.  264. 

13  For  the  sake  of  clearness  it  is  better  not  to  speak  of  the  "exclusive" 
power  of  Congress.  That  word  might  be  understood  either  as  opposed  to 
"concurrent,"  or  as  opposed  to  "paramount."  And  it  may  be  added  that 
reasons  may  well  be  advanced  in  support  of  the  position  that  the  power  of 
Congress  is  more  than  simply  concurrent,  which  could  not  be  advanced  in 
support  of  the  position  that  the  power  is  more  than  simply  paramount. 

14  See  Robbins  v.  Shelby  Taxing  Dist.  (1887)  120  U.  S.  489,  492,  7  Sup. 
Ct.  5!^2,  593,  30  L.  ed.  694,  (where  the  decisions  in  some  of  the  earliest  cases 
are  misstated)  ;  cases  there  cited;  cases  cited  in  Atlantic  &  P.  T.  Co.  v. 
Philadelphia  (1903)  190  U.  S.  160,  162,  23  Sup.  Ct.  817,  47  L.  ed.  995;  and 
Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  33  Sup. 
Ct.  729,  57  L.  ed.  1511;  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S. 
1,  26,  27,  30  Sup.  Ct.  190,  197,  54  L.  ed.  355;  Missouri  P.  Ry.  Co. 
v.  Larabee  F.  M.  Co.  (1909)  211  U.  S.  612,  621,  29  Sup.  Ct.  214,  217, 
53  L.  ed.  352;  Olsen  v.  Smith  (1904)  195  U.  S.  332,  341,  25  Sup. 
Ct.  52,  53,  49  L.  ed.  224;  Leisy  v.  Hardin  (1890)  135  U.  S.  100,  109,  119, 
10  Sup.  Ct.  681,  684,  688,  34  L.  ed.  128;  Pound  v.  Turck  (1877)  95 
U.  S.  459,  24  L.  ed.  525;  West  v.  Kansas  N.  G.  Co.  (1911)  221  U.  S. 
229,  261,  31  Sup.  Ct.  564,  573,  55  L.  ed.  716.  Compare  Cooke,  The  Com- 
merce Clause,  p.  110;  Cooke,  The  Pseudo-Doctrine  of  the  Exclusiveness 
of  the  Power  of  Congress  to  Regulate  Commerce,  20  Yale  L.  J.  297;  book 


6  THE    COMMERCE    CLAUSE. 

may  determine  whether  matters  are  of  such  a  nature  that 
they  may  be  regulated  only  by  Congress.^^ 

Reasons  for  position  examined. 

4.  We  must  bear  in  mind  that  the  court  concedes  that 
the  power  of  Congress  is  in  some  respects  simply  para- 
mount. So  far  as  we  may  judge  from  the  words  of  the 
commerce  clause,  though,  it  seems  that  the  authority 
granted  to  it  must  be  either  always  simply  paramount  or 
always  vested  solely  in  Congress.  Those  words  them- 
selves do  not  show  that  the  clause  bestows  more  than  one 
kind  of  power  upon  Congress.  And  the  court  has  not 
shown  that  the  Constitution  supports  its  position  that  the 
power  of  Congress  is  bifurcated. 

As  for  the  reason  in  support  of  the  statement  that  the 
authority  over  interstate  commerce  is  sometimes  vested 
solely  in  Congress,  it  is  doubtless  true  that  those  who 
adopted  the  Constitution  thought  that  in  some  matters 
concerning  interstate  commerce  uniform  rules  were  highly 
desirable.  But  it  is  also  doubtless  true  that  they  thought 
that  Congress  would  deal  with  such  matters,  that  Con- 
gress would  determine  whether  or  not  a  matter  were  such 
as  to  require  uniform  regulation,  and  that  it  would  be 
congressional  action  rather  than  any  judicial  views  as  to 
the  nature  of  the  state  legislation  which  would  render 

review  in  12  Harv.  L.  Rev.  359. — In  one  of  the  most  important  cases  upon 
the  general  subject  which  we  are  considering,  Cooley  v.  Board  of  Wardens 
(1851)  12  How.  299,  318,  13  L.  ed.  996,  reference  is  made  to  the  power  of 
Congress  to  legislate  for  the  District  of  Columbia,  and  that  power  is  said  to 
be  of  such  a  nature  as  to  be  absolutely  and  totally  repugnant  to  the  exist- 
ence of  similar  power  in  the  states.  But  the  fact  that  Congress  alone  may 
legislate  for  the  District  of  Columbia  does  not  rest  upon  any  judicial  views 
as  to  the  nature  of  the  power  conferred.  It  rests  upon  the  express  words  of 
the  Constitution. 
15  See  note  16,  infra. 


IMPLIED  RESTEAINT  ON  THE  STATES.  7 

state  legislation  upon  such  matters  invalid.^  ^  In  other 
words,  there  does  not  seem  to  be  any  reason  for  saying 
that  the  court  should  inquire  whether  uniformity  of  regu- 
lation is  desirable.  The  Constitution  seems  to  state  ex- 
pressly just  what  powers  were  intended  to  be  placed  solely 
within  the  control  of  Congress  and  it  nowhere  declares, 
either  expressly  or  by  necessary  implication  from  any  ex- 
press provision,  that  the  power  bestowed  upon  Congress 
by  the  commerce  clause  or  any  part  of  that  power  is 
vested  solely  in  Congress.  For  the  court,  then,  to  hold 
that  state  legislation  which  does  not  conflict  with  federal 
legislation  is  forbidden  by  the  commerce  clause  seems  to 
be  entirely  unwarranted. 

Bearing  of  position  upon  rate  regulation. 

5.  The  fact  remains,  however,  that  the  court  declares 
that  the  power  over  interstate  commerce  is  in  some  re- 
spects vested  only  in  Congress  and  it  is  not  likely  that 
the  court  will  reverse  its  position.  And  while  such  rul- 
ings ought  not  to  be  applied  in  cases  in  which  it  is  doubt- 
ful whether  they  are  strictly  applicable,  it  is  clear  that  if 
they  are  enforced  at  all  they  must  have  a  material  bear- 
ing upon  state  regulation  of  the  charges  for  interstate 
transportation.  Of  course,  such  rulings  are  of  less  im- 
portance now  than  they  were  before  the  enactment  of  the 
Interstate  Commerce  Act.  Where  Congress  has  legislated 
state  legislation  which  is  inconsistent  therewith  may  be 
declared  invalid  without  reference  to  those  decisions.  But 
unless  Congress  has  dealt  with  railroad  rates  to  the  full 
extent  of  its  power,  the  rule  which  has  been  laid  down  in 

16"The  question  whether  or  not  a  given  subject  admits  of  only  one  uni- 
form system  or  plan  of  regulation  is  primarily  a  legislative  question,  not  a 
judicial  one:"    Thayer,  Cases  on  Constitutional  Law,  2190,  note. 


8  THE    COMMERCE    CLAUSE. 

those  decisions  even  to-day  requires  serious  considera- 
tion.!"^ 

INTERSTATE  RATES. 

General  principles. 

6.  The  Supreme  Court  has  decided  repeatedly  that 
Congress  may  limit  the  charges  for  interstate  transporta- 
tion. This  position  has  heen  shown  not  only  by  its  en- 
forcement of  the  Anti-trust  Act/*  which  indirectly  regu- 
lates charges,  but  also  by  its  enforcement  of  the  provis- 
ions of  the  Interstate  Commerce  Act  ^^  and  by  its  decisions 

17  Compare  the  authorities  cited  in  sec.  9,  infra,  wlierein  the  effect  of  the 
rule  whose  validity  we  have  just  considered  is  modified  by  a  rule  of  doubtful 
consistency  with  it. 

18  For  example,  in  United  States  v.  Union  P.  R.  Co.  (1912)  226  U.  S.  61, 
470,  33  Sup.  Ct.  53,  162,  57  L.  ed.  124;  United  States  v.  Terminal  R.  Assn. 
of  St.  Louis  (1912)  224  U.  S.  383,  32  Sup.  Ct.  507,  56  L.  ed.  810;  Northern 
S.  Co.  V.  United  States  ( 1904)  193  U.  S.  197,  24  Sup.  Ct.  436,  48  L.  ed.  679; 
United  States  v.  Joint  T.  Assn.  (1898)  171  U.  S.  505,  19  Sup.  Ct.  25,  43  L. 
ed.  259;  United  States  v.  Trans-Missouri  F.  Assn.  (1897)  166  U.  S.  290,  17 
Sup.  Ct.  540,  41  L.  ed.  1007.  See  also  United  States  v.  Lake  S.  &  M.  S.  Ry. 
Co.  (1912)  203  Fed.  295. 

19  See,  in  addition  to  the  cases  referred  to  later  on,  the  following  cases  in 
which  that  Act  was  enforced  but  which  did  not  turn  upon  the  question 
whether  or  not  the  commerce  was  interstate:  Morrisdale  C.  Co.  v.  Pennsyl- 
vania R.  Co.  ( 1913)  230  U.  S.  304,  33  Sup.  Ct.  938,  57  L.  ed.  1494;  Illinois  C. 
R.  Co.  V.  Henderson  E.  Co.  (1913)  226  U.  S.  441,  33  Sup.  Ct.  176,  57  L.  ed. 
290;  Kansas  C.  S.  Ry.  Co.  v.  Albers  Comn.Co.  (1912)  223  U.  S.  573,  32  Sup.  Ct. 
316,56  L.ed.  556;  United  States  v.  Miller  (1912)  223  U.  S.  599,  32  Sup.  Ct. 
323,  56  L.  ed.  568  ;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Wallace  ( 1912 )  223  U.  S. 
481,  32  Sup.  Ct.  205,  56  L.  ed.  516;  Interstate  Com.  Comn.  v.  Union  P.  Ry. 
Co.  (1912)  222  U.  S.  541,  32  Sup.  Ct.  108,  56  L.  ed.  308;  Union  P.  Ry.  Co. 
V.  Updike  G.  Co.  (1911)  222  U.  S.  215,  32  Sup.  Ct.  39,  56  L.  ed.  171;  United 
States  v.  Lehigh  V.  R.  Co.  (1911)  220  U.  S.  257,  31  Sup.  Ct.  387,  55  L.  ed. 
458;  Louisville  &  N.  R.  Co.  v.  Mottley  (1911)  219  U.  S.  467,  31  Sup.  Ct. 
265,  55  L.  ed.  297;  Chicago,  I.  &  L.  Ry.  Co.  v.  United  States  (1911)  219  U. 
S.  486,  31  Sup.  Ct.  272,  55  L.  ed.  305;  Interstate  Com.  Comn.  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  30  Sup.  Ct.  651,  54  L.  ed. 
946;  Interstate  Com.  Comn.  v.  Chicago,  B.  &  Q.  R.  Co.  (1910) 
218  U.  S.  113,  30  Sup.  Ct.  660,  54  L.  ed.  959;  American  Ex.  Co. 
V.   United  States    (1909)    212   U.   S.   522,29   Sup.   Ct.  315,  53   L.   ed.   635; 


INTEESTATE  EATES.  9 

that  state  legislation  which  regulates  interstate  com- 
merce is  unconstitutional  because  the  power  to  regulate 
such  commerce  has  been  granted  to  the  federal  govern- 
ment. 

Instances  of  interstate  rates. 

7.  Thus,  the  court  has  held  that  the  act  of  Congress 
which  regulates  interstate  commerce  applies  when  a  series 
of  railroads  carrying  under  a  joint  arrangement  charges 
more  for  carrying  from  a  point  outside  a  state  to  one 
point  within  the  state  than  to  a  more  distant  point  within 
the  same  state.^^^  Upon  the  ground  that  governmental 
power  to  make  such  regulations  rests  only  in  the  federal 
government,  it  has  decided  that  a  state  may  not  limit  the 

United  States  v.  New  Y.  C.  &  H.  E.  E.  Co.  (1909)  212  U.  S.  509,  29  Sup. 
Ct.  313,  53  L.  ed.  629;  New  Y.  C.  &  H.  E.  E.  Co.  v.  United  States  (1909) 
212  U.  S.  500,  29  Sup.  Ct.  309,  53  L.  ed.  624;  New  Y.  C.  &  H.  E.  E.  Co.  v. 
United  States  (1909)  212  U.  S.  481,  29  Sup.  Ct.  304,  53  L.  ed.  613;  Armour 
P.  Co.  V.  United  States  (1908)  209  U.  S.  56,  28  Sup.  Ct.  428,  52  L.  ed.  681; 
Texas  &  P.  Ey.  Co.  v.  Cisco  Oil  Mill  ( 1907 )  204  U.  S.  449,  27  Sup.  Ct.  358, 
51  L.  ed.  562;  Texas  &  P.  Ey.  Co.  v.  Abilene  C.  O.  Co.  (1907)  204  U.  S. 
426,  27  Sup.  Ct.  350,  51  L.  ed.  553;  Interstate  Com.  Comn.  v.  Baird  (1904) 
194  U.  S.  25,  24  Sup.  Ct.  563,  48  L.  ed.  860;  Wight  v.  United  States  (1897) 
167  U.  S.  512,  17  Sup.  Ct.  822,  42  L.  ed.  258.  And  see  Southern  P.  T.  Co.  v. 
Interstate  Com.  Comn.  (1911)  219  U.  S.  498,  31  Sup.  Ct.  279,  55  L.  ed.  310; 
Second  Employers'  Liability  Cases — Mondou  v.  New  Y.,  N.  H.  &  H.  E.  Co. 
(1912)  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  ed.  327. 

20  Louisville  &  N.  E.  Co.  v.  Behlmer  (1900)  175  U.  S.  648,  20  Sup.  Ct. 
209,  44  L.  ed.  309;  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.  v.  Interstate  Com. 
Comn.  (1896)  162  U.  S.  184,  16  Sup.  Ct.  700,  40  L.  ed.  935.  See  also  note 
37,  infra,  and  Missouri,  K.  &  T.  Ey.  Co.  v.  New  E.  M.  Co.  (1909)  80  Kan. 
141,  101  Pac.  1011;  Commonwealth  v.  Peoples  Ex.  Co.  (1909)  201  Mass. 
564,  88  N.  E.  420;  United  States  v.  Vacuum  Oil  Co.  (1908)  158  Fed.  536; 
Corcoran  v.  Louisville  &  N.  E.  Co.  (1907)  125  Ky.  634,  101  S.  W.  1185; 
United  States  v.  Standard  Oil  Co.  (1907)  155  Fed.  305;  United  States  v. 
Seaboard  Ey.  Co.  (1897)  82  Fed.  563.  Compare  Allen  &  Lewis  v.  Oregon 
E.  &  Nav.  Co.  (1901)  106  Fed.  265,  269.— In  Interstate  Com.  Comn.  v. 
Eeichmann  (1906)  145  Fed.  235,  it  was  held  that  Congress  may  regulate 
the  charges  for  the  use  of  cars  which  are  used  for  interstate  transportation 
but  which  are  not  owned  by  any  railroad  company. 


10  THE    COMMERCE    CLAUSE. 

rates  for  carrying  even  between  stations  within  its  terri- 
tory when  a  part  of  the  route  is  outside  the  state i^^  and 
that  a  state  may  not  limit  the  charge  for  carrying  goods 
from  a  point  within  the  state  to  another  point  within  that 
state  and  there  placing  the  goods  on  board  a  ship  in  pre- 
paration for  their  transportation  out  of  the  state,  and  this 
is  true  even  though  at  the  time  when  the  goods  are  ten- 
dered to  the  railroad  for  transportation  no  decision  has 

2iHaiiley  v.  Kansas  C.  S.  Ry.  Co.  (1903)  187  U.  S.  617,  23  Sup.  Ct.  214, 
47  L.  ed.  333.  See  also  St.  Louis  &  S.  F.  Ry.  Co.  v.  State  (1908)  87  Ark. 
562,  113  S.  W.  203;  United  States  v.  Erie  R.  Co.  (1909)  166  Fed.  352; 
Mires  v.  St.  Louis  &  S.  F.  R.  Co.  (1908)  134  Mo.  App.  379,  114  S.  W.  1052; 
Hunter  v.  Charleston  &  W.  C.  Ry.  Co.  (1908)  81  S.  C.  169,  62  S.  E.  13; 
Frasier  v.  Charleston  &  W.  C.  Ry.  Co.  (1908)  81  S.  C.  162,  62  S.  E.  14; 
United  States  v.  Delaware,  L.  &  W.  R.  Co.  (1907)  152  Fed.  269;  Cowden  v. 
Pacific  C.  S.  Co.  (1892)  94  Cal.  470,  29  Pac.  873,  18  L.  R.  A.  221;  note  in 
28  L.  R.  A.  N.  S.  985.  Compare  Ewing  v.  Leavenworth  (1913)  226  U.  S. 
464,  33  Sup.  Ct.  157,  57  L.  ed.  303;  Hardwick  F.  E.  Co.  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.  (1910)  110  Minn.  25,  124  N.  W.  819;  St.  Louis  &  S.  F.  R.  Co. 
V.  Hadley  (1909)  168  Fed.  317;  Dugan  v.  State  (1890)  125  Ind.  130,  25  N. 
E.  171,  9  L.  R.  A.  321;  Cooke,  The  Commerce  Clause,  p.  58,  note.  And  see 
Pacific  C.  S.  Co.  V.  Board  of  R.  Comrs.  (1883)  18  Fed.  10,  9  Saw.  253,  cited 
with  approval  in  the  Hanley  case,  supra,  which  holds  that  a  state  may  not 
regulate  rates  for  carrying  between  two  places  within  its  borders  by  a  boat 
which  goes  upon  the  high  seas.  As  to  the  power  of  Congress  to  regulate 
charges  for  carrying  between  two  places  within  the  same  state  upon  a  water- 
way which  is  entirely  within  the  state,  but  which  connects  with  the  ocean, 
see  p.  42,  infra. — Justice  Woodbury  said  in  his  separate  opinion  in  Pas- 
senger Cases  (1849)  7  How.  283,  559,  12  L.  ed.  702,  "So  far  as  reasons 
exist  to  make  the  exercise  of  the  commercial  power  exclusive,  as  on  matters 
of  exterior,  general  and  uniform  cognizance,  the  construction  may  be  proper 
to  render  it  exclusive,  but  no  further,  as  the  exclusiveness  depends  in  this 
case  wholly  on  the  reasons,  and  not  on  any  express  prohibition,  and  hence 
cannot  extend  beyond  the  reasons  themselves.  Where  they  disappear,  the 
exclusiveness  should  halt.  In  such  case,  emphatically,  cessante  ratione, 
cessat  et  ipsa  lex."  If  this  is  true,  the  decision  in  Hanley  v.  Kansas  C.  S. 
Ry.  Co.  seems  to  be  incorrect.  If  the  state  attempted  to  regulate  the  run- 
ning of  trains  over  the  entire  course,  the  rouie  might  be  material  and  it 
might  be  said  that  the  state  was  interfering  with  interstate  matters.  But 
with  regard  to  the  question  of  rates  it  seems  that  the  route  isnot  material, 
and  where  the  transportation  is  between  two  points  within  the  same  state 
the  rates  affect  only  persons  within  that  state  and  are  in  general  only  a 
local  matter. 


INTERSTATE   RATES.  11 

been  reached  as  to  their  ultimate  destination.-^  And  be- 
fore any  federal  statute  on  the  subject  had  been  enacted, 
the  court  decided  that  a  state  may  not  interfere  with  the 
rates  when  one  of  the  termini  is  beyond  the  jurisdiction 
of  the  state,  declaring  unconstitutional  a  statute  which 
forbade  a  railroad  carrying  to  a  place  outside  the  state  to 
charge  more  from  one  point  within  its  borders  than  from 
a  more  distant  point  within  its  borders.-^  It  is  a  matter 
of  course  that  since  the  passage  of  the  interstate  com- 
merce law  a  state  may  not  regulate  the  charges  for  inter- 
state transportation.^^    Inasmuch  as  the  interstate  com- 

22  Railroad  Comn.  of  Ohio  v.  Worthington  (1912)  225  U.  S.  101,  32  Sup. 
Ct.  653,  56  L.  ed.  1004.  See  also  to  the  seme  effect  Texas  &  N.  O.  R.  Co.  v. 
Sabine  T.  Co.  (1913)  227  U.  S.  Ill,  33  Sup.  Ct.  229,  57  L.  ed.  442. 

23  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illinois  (1886)  118  U.  S.  557,  7  Sup.  Ct. 
4,  30  L.  ed.  244.  On  the  point  that  even  in  the  absence  of  federal  action  a 
state  may  not  limit  interstate  rates,  see  also  Covington  &  C.  B.  Co.  v.  Ken- 
tucky (1894)  154  U.  S.  204,  14  Sup.  Ct.  1087,  38  L,  ed.  962;  St.  Clair 
County  v.  Interstate  S.  &  C.  T.  Co.  (1904)  192  U.  S.  454,  24  Sup.  Ct.  300, 
48  L.  ed.  518;  Northern  P.  Ry.  Co.  v.  Keyes  (1898)  91  Fed.  47,  51. 

24  Chicago,  I.  &  L.  Ry.  Co.  v.  United  States  (1911)  219  U.  S.  486,  497,  31 
Sup.  Ct.  272,  275,  55  L.  ed.  305;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley  (1895) 
158  U.  S.  98,  15  Sup.  Ct.  802,  39  L.  ed.  910;  New  Y.  C.  &  H.  R.  R.  Co.  v. 
Board  of  Chosen  Freeholders  (1907)  74  N.  J.  L.  367,  65  Atl.  860;  Kansas 
C.  S.  Ry.  Co,  v.  Brooks  (1907)  84  Ark.  233,  105  S.  W.  93;  Rosenbaum  G. 
Co.  V.  Chicago,  R.  I.  &  T.  Ry.  Co.  (1903)  130  Fed.  46;  and  see  United  States 
Constitution,  Article  VI,  clause  2;  St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Scale 
(1913)  229  U.  S.  156,  33  Sup.  Ct.  651,  57  L.  ed.  1129;  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Hesterly  (1913)  228  U.  S.  702,  33  Sup.  Ct.  703,  57  L.  ed.  1031;  Mc- 
Dermott  v.  Wisconsin  (1913)  228  U.  S.  115,  132,  33  Sup.  Ct.  431,  435,  57 
L.  ed.  754;  Michigan  C.  R.  Co.  v.  Vreeland  (1913)  227  U.  S.  59,  66,  33  Sup. 
Ct.  192,  194,  57  L.  ed.  417;  Northern  S.  Co.  v.  United  States  (1904)  193  U.  S. 
197,  333,  24  Sup.  Ct.  436,  455,  48  L.  ed.  679;  Missouri,  K.  &  T.  Ry.  Co.  v. 
Haber  (1898)  169  U.  S.  613,  626,  18  Sup.  Ct.  488,  493,  42  L.  ed.  878.— Where 
destination  is  at  state  boundary  line,  see  Scammon  v.  Kansas  C,  St.  J.  &  C. 
B.  R.  Co.  (1890)  41  Mo.  App.  194;  and  where  destination  is  just  outside  the 
state,  see  Railroad  Co.  v.  Maryland  (1874)  21  Wall.  456,  22  L.  ed.  678, 
with  interpretation  in  Covington  &  C.  B.  Co.  v.  Kentucky  (1894)  154  U.  S. 
204,  210,  14  Sup.  Ct.  1087,  1089,  38  L.  ed.  962.  It  is,  nevertheless,  unlikely 
that  Maryland  could  at  the  present  time  directly  regulate  fares  between 
Baltimore  and  Washington.     In  connection  with  Railroad  Co.  v.  Maryland, 


12  THE    COMMERCE    CLAUSE. 

merce  act  applies  to  all  ferries  used  or  operated  in  con- 
nection with  any  railroad,  a  state  may  not  regulate  the 
charges  for  transportation  on  an  interstate  ferry  even 
when  the  transportation  is  not  in  connection  with  railroad 
transportation.^** 

Legislation  and  the  common  law. 

8.  Before  that  statute  was  enacted,  the  common  law  rule 
that  charges  for  transportation  must  be  reasonable-*'  was 
in  full  force  and  might  have  been  invoked  in  the  state 
courts  even  with  regard  to  interstate  transportation  ;2'' 
but  since  the  passage  of  that  statute  redress  can  be  ob- 
tained only  in  the  manner  prescribed  by  it.^^ 

State  laws  "affecting  but  not  regulating"  interstate  com- 
merce. 

9.  While  the  silence  of  Congress  would  not  authorize  a 

see  Western  U.  T.  Co.  v.  Chiles  (1907)  107  Va.  60,  57  S.  E.  587,  where,  it 
will  be  observed,  the  decision  is  not  based  on  Western  U.  T.  Co.  v.  Jamea 
(1896)   162  U.  S.  650,  16  Sup.  Ct.  934,  40  L.  ed.  1105. 

25 New  Y.  C.  &  H.  R.  R.  Co.  v.  Board  of  Chosen  Freeholders  (1913)  227 
U.  S.  248,  33  Sup.  Ct.  269,  57  L.  ed.  499.     Compare  23  Harv.  L.  Rev.  484. 

26  See  note  14  in  Chapter  2,  infra. 

27  See  Texas  &  P.  Ry.  Co.  v.  Abilene  C.  O.  Co.  (1907)  204  U.  S.  426,  27 
Sup.  Ct.  350,  51  L.  ed.  553;  Western  U.  T.  Co.  v.  Call  P.  Co.  (1901)  181  U. 
S.  92,  21  Sup.  Ct.  561,  45  L.  ed.  765;  and  also  Cooke,  Commerce  Clause, 
p.  116;  Rose,  Code  of  Federal  Procedure,  sec.  13;  Western  U.  T.  Co.  v.  Com- 
mercial M.  Co.  (1910)  218  U.  S.  406,  31  Sup.  Ct.  59,  54  L.  ed.  1088. 

28  Texas  &  P.  Ry.  Co.  v.  Abilene  C.  O.  Co.  ( 1907 )  204  U.  S.  426,  27  Sup. 
Ct.  350,  51  L  ed.  553.  See  also  Morrisdale  C.  Co.  v.  Pennsylvania  R.  Co. 
(1913)230  U.S.  304,  33   Sup.  Ct.  938,  57  L.  ed.  1494;  Robinson  V.Baltimore 

&  O.  R.  Co.  (1912)  222  U.  S.  506,  32  Sup.  Ct.  114,  56  L.  ed.  288;  Baltimore  & 
O.  R.  Co.  V.  United  States  (1910)  215  U.  S.  481,  30  Sup.  Ct.  164,  54  L.  ed. 
292;  Southern  Ry.  Co.  v.  Tift  (1907)  206  U.  S.  428,  27  Sup.  Ct.  709,  51  L. 
ed.  1124.  Compare  Mitchell  C.  &  C.  Co.  v.  Pennsylvania  R.  Co.  (1913)  230 
U.  S.  247,  33  Sup.  Ct.  916,  57  L.  ed.  1472;  Pennsylvania  R.  Co.  v.  Interna- 
tional C.  M.  Co.  (1913)  230  U.  S.  184,  33  Sup.  Ct.  893,  57  L.  ed.  1446;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Wallace  (1912)  223  U.  S.  481,  32  Sup.  Ct.  205, 
56  L.  ed.  516;  Louisville  &  N.  R.  Co.  v.  Cook  B.  Co.  (1912)  223  U  S.  70, 
32  Sup.  Ct.  189,  56  L.  ed.  355. 


INTERSTATE   RATES.  13 

state  to  regulate  the  charges  for  interstate  transportation, 
yet  in  that  event  a  state  might  enact  laws  affecting  such 
commerce  but  not  regulating  it  within  the  meaning  of 
the  Constitution.^^  Before  the  passage  of  the  Interstate 
Commerce  Act  a  state  might  have  required  its  railroads 
to  publish  their  interstate  rates,^°  and  to  carry  goods  at 
the  published  rates,^^  or  to  carry  at  the  rates  named  in  the 
bills  of  lading. 32  But  since  the  passage  of  that  act,  which 
requires  railroads  to  carry  at  the  rates  of  which  sched- 
ules have  been  filed  with  the  Interstate  Commerce  Com- 
mission and  given  to  the  agents  of  the  carriers,^^  a  state 

29  See  Hall  v.  De  Cuir  (1877)  95  U.  S.  485,  490,  24  L.  ed.  547;  Kidd  v. 
Pearson  (1888)  128  U.  S.  1,  23,  9  Sup.  Ct.  6,  11,  32  L.  ed.  346;  Railroad 
Co.  V.  Fuller  (1873)  17  Wall.  560,  568,  21  L.  ed.  710;  Martin  v.  Pittsburg 
&  L.  E.  R.  Co.  (1906)  203  U.  S.  284,  27  Sup.  Ct.  100,  51  L.  ed.  284;  Michi- 
gan C.  R.  Co.  V.  Vreeland  (1913)  227  U.  S.  59,  33  Sup.  Ct.  192,  57  L.ed.  417; 
Adams  Ex.  Co.  v.  Croninger  (1913)  226  U.  S.  491,  33  Sup.  Ct.  148,  57  L.  ed. 
314;  Missouri  P.  Ry.  Co.  v.  Castle  (1912)  224  U.  S.  541,  32  Sup.  Ct.  606, 
56  L.  ed.  875;  Southern  Ry.  Co.  v.  Reid  (1912)  222  U.  S.  424,  32  Sup.  Ct. 
140,  56  L.  ed.  257;  Martin  v.  West  (1911)  222  U.  S.  191,  32  Sup.  Ct.  42, 
56  L.  ed.  159;  Western  U.  T.  Co.  v.  Crovo  (1911)  220  U.  S.  364,  31  Sup.  Ct. 
399,  55  L.  ed.  498;  Southern  Ry.  Co.  v.  King  (1910)  217  U.  S.  524,  30  Sup. 
Ct.  594,  54  L.  ed.  868;  Atlantic  C.  L.  R.  Co.  v.  Mazursky  (1910)  216  U.  S. 
122,  30  Sup.  Ct.  378,  54  L.  ed.  411;  Missouri  P.  Ry.  Co.  v.  Larabee  F.  M. 
Co.  (1909)  211  U.  S.  612,  29  Sup.  Ct.  214,  53  L.  ed.  352;  Mobile,  J.  &  K. 
C.  R.  Co.  V.  Mississippi  (1908)  210  U.  S.  187,  28  Sup.  Ct.  650,  52  L.  ed. 
1016.  Compare  Brown  v.  Houston  (1885)  114  U.  S.  622,  630,  5  Sup.  Ct. 
1091,  1095,  29  L.  ed.  257;  Welton  v.  Missouri  (1875)  91  U.  S.  275,  280,  23 
Sup.  Ct.  347;  McNeill  v.  Southern  Ry.  Co.  (1906)  202  U.  S.  543,  26  Sup.  Ct. 
722,  50  L.  ed.  1142;  Louisville  &  N.  R.  Co.  v.  Hughes  (1912)  201  Fed.  727, 
and  see  the  extreme  position  taken  in  Northern  P.  Ry.  Co.  v.  Washington 
(1912)  222  U.  S.  370,  32  Sup.  Ct.  160,  56  L.  ed.  237.— On  local  rates  which 
aflfect  interstate  rates  indirectly  see  sec.  11,  infra. 

30  See  Railroad  Co.  v.  Fuller  (1873)  17  Wall.  560,  21  L.  ed.  710;  Stone 
V.  Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  334,  6  Sup.  Ct.  334,  346,  29 
L.  ed.  636. 

31  Railroad  Co.  v.  Fuller   (1873)   17  Wall.  560,  21  L.  ed.  710. 

32  Little  R.  &  F.  S.  Ry.  Co.  v.  Hanniford  (1887)  49  Ark.  291,  5  S.  W. 
294.  See  also  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley  (1895)  158  U.  S.  98,  15 
Sup.  Ct.  802,  39  L.  ed.  910. 

33  Illinois  C.  R.  Co.  v.  Henderson  E.  Co.    (1913)   226  U.  S.  441,  33  Sup. 


14  THE    COMMERCE    CLAUSE. 

law  which  limits  the  carrier  to  the  rate  named  in  the  bill 
of  lading  cannot  constitutionally  be  applied  to  interstate 
shipments.^^  And,  in  view  of  the  provision  of  the  federal 
law  which  forbids  interstate  transportation  until  rates 
have  been  filed  and  published,  penalties  imposed  by  state 
law  for  delay  in  transporting  interstate  freight  cannot  be 

Ct.  176,  57  L.  ed.  290;  Texas  &  P.  Ry.  Co.  v.  Cisco  Oil  Mill  (1907)  204  U.  S. 
449,  27  Sup.  Ct.  358,  51  L.  ed.  562;  Kansas  C.  S.  Ry.  Co.  v.  Albers  Comn. 
Co.  (1912)  223  U.  S.  573,  32  Sup.  Ct.  G16,  56  L.  ed.  556;  United  States  v. 
Miller  (1912)  223  U.  S.  599,  32  Sup.  Ct.  323,  56  L.  ed.  568;  United  States 
V.  Vacuum  Oil  Co.  (1908)  158  Fed.  536;  Act  Feb.  4,  1887,  c.  104,  sec.  6,  cl. 
4,  24  U.  S.  Stat,  at  L.  381,  re-enacted  by  Act  Mar.  2,  1889,  c.  382,  sec.  1,  cl. 
4,  25  U.  S.  Stat,  at  L.  856,  3  Fed.  Stats.  An.  808,  828,  829.  Compare  Santa 
Fe,  P.  &  P.  Ry.  Co.  v.  Grant  Bros.  C.  Co.  (1913)  228  U.  S.  177,  188,  33  Sup. 
Ct.  474,  478,  57  L.  ed.  787. 

34  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley  ( 1895 )  158  U.  S.  98,  15  Sup.  Ct.  802, 
39  L.  ed.  910.  See  also  Louisville  &  N.  R.  Co.  v.  Mottley  (1911)  219  U.  S. 
467,  31  Sup.  Ct.  265,  55  L.  ed.  297;  Chicago,  I.  &  L.  Ry.  Co.  v.  United  States 
(1911)  219  U.  S.  486,  31  Sup.  Ct.  272,  55  L.  ed.  305;  St.  Louis  S.  W.  Ry.  Co. 
V.Arkansas  (1910)  217  U.  S.  136,  30  Sup.  Ct.  476,  54  L.  ed.  698;  Missouri,  K. 
&  T.  Ry.  Co.  V.  Harriman  (1913)  227  U.  S.  657,  33  Sup.  Ct.  397,  57  L.  ed.  690; 
Kansas  C.  S.  Ry.  Co.  v.  Carl,  (1913)  227  U.  S.  639,  33  Sup.  Ct.  391,  57  L.  ed. 
note  24,  supra.  A  shipper  cannot  recover  damages  sustained  by  him  through 
a  misstatement  by  an  agent  of  the  railroad  as  to  the  rate  which  would  be 
charged:  Texas  &  P.  Ry.  Co.  v.  Mugg  &  Dryden  (1906)  202  U.  S.  242,  26 
Sup.  Ct.  628,  50  L.  ed.  1011. — It  was  held  by  a  state  court  in  Chicago,  St. 
L.  &  P.  R.  Co.  V.  Wolcott  (1895)  141  Ind.  267,  39  N.  E.  451,  that  a  state 
may  forbid  its  railroads  to  increase  the  charge  for  carrying  goods,  even  to 
another  state,  after  the  goods  have  been  tendered  for  transportation.  See 
also  Stewart  v.  Comer  (1897)  100  Ga.  754,  28  S.  E.  461.  Compare  Strough 
v.  New  Y.  C.  &  H.  R.  R.  Co.  (1904)  92  N.  Y.  App.  Div.  584,  87  N.  Y.  Supp. 
30,  affirmed  (1905)  181  N.  Y.  533,  73  N.  E.  1133;  Southern  Ex.  Co.  v.  Gold- 
berg (1903)  101  Va.  619,  44  S.  E.  893,  62  L.  R.  A.  669.  In  the  Indiana  case 
the  charges  were  increased  during  a  delay  in  furnishing  cars  to  the  plaintiff 
which  was  due  to  discrimination  against  him.  In  the  New  York  case  they 
were  increased  during  a  delay  which  was  not  due  to  discrimination.  The 
Indiana  court  seems  to  have  taken  a  strong  position,  but  it  appears,  how- 
over,  that  the  Supreme  Court  would  not  sustain  such  a  decision  at  the 
present  day:  see  Southern  Ry.  Co.  v.  Reid  &  Beam  (1912)  222  U.  S.  444, 
32  Sup.  Ct.  145,  56  L.  ed.  263,  and  cases  there  cited,  wherein  an  extreme 
position  is  taken. 


LOCAL  RATES.  15 

enforced  where  the  delay  was  caused  by  the  fact  that  the 
rates  involved  had  not  yet  been  fixed  and  published.^^ 

LOCAL  RATES. 

What  are  local  rates? 

10.  As  already  stated,  the  Interstate  Commerce  Act 
applies  when  a  series  of  railroads  acting  under  a  joint 
arrangement  carries  between  points  in  different  states,^^ 
and  even  though  the  final  carrier  of  the  series  is  a  rail- 
road company  whose  line  is  situated  entirely  within  the 
state  of  destination  the  act  applies  to  that  carrier.^'^  On 
the  other  hand,  where  the  transportation  by  railroad^* 

35  Southern  Ry.  Co.  v.  Reid  (1912)  222  U.  S.  424,  32  Sup.  Ct.  140,  56 
L.  ed.  257.  See  also  Southern  Ry.  Co.  v.  Reid  &  Beam  (1912)  222  U.  S. 
444,  32  Sup.  Ct.  145,  56  L.  ed.  263 ;  Southern  Ry.  Co.  v.  Burlington  L.  Co. 

(1912)  225  U.  S.  99,  32  Sup.  Ct.  657,  56  L.  ed.  1001.— In  Chicago,  R.  L  & 
P.  Ry.  Co.  V.  Hardwick  F.  E.  Co.  (1913)  226  U.  S.  426,  33  Sup.  Ct.  174,  57 
L.  ed.  284;  the  court  declared  unconstitutional  a  state  law  which  penalized 
delay  in  furnishing  cars;  and  in  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Edwards 

( 1913)  227  U.  S.  265,  33  Sup.  Ct.  262,  57  L.  ed.  506;  Yazoo  &  M.  V.  R.  Co.  v. 
Greenwood  G.  Co.  (1913)  227  U.  S.  1,  33  Sup.  Ct.  213,  57  L.  ed.  389,  it  de- 
clared unconstitutional  state  regulations  which  penalized  delay  in  deliver- 
ing cars  to  consignees.  See  also  Hampton  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
(1913)   227  U.  S.  456,  33  Sup.  Ct.  263,  57  L.  ed.  596. 

36  See  p.  9,  supra. 

37  See  authorities  cited  in  note  20,  supra,  and  note  70,  infra.  In  Cincin- 
nati, N.  O.  &  T.  P.  Ry.  Co.  v.  Interstate  Com.  Comn.  (1896)  162  U.  S.  184, 
16  Sup.  Ct.  700,  40  L.  ed.  935,  goods  were  carried  under  through  bills  by  a 
series  of  railroads  of  which  the  final  one  was  a  local  road  which  received 
the  local  rate  for  its  part  of  the  shorter  haul  and  a  lower  sum  as  its  share 
of  the  earnings  for  the  longer  haul.  The  court  decided  that  the  final  carrier 
did  not  escape  the  provisions  of  the  act  by  requesting  preceding  carriers  not 
to  name  rates  for  its  part  of  the  transportation  except  when  the  goods  were 
shipped  to  designated  points,  which  did  not  include  the  terminus  of  the 
shorter  haul.  "Having  elected  to  enter  into  the  carriage  of  interstate 
freights  and  thus  subjected  itself  to  the  control  of  the  Commission,  it 
would  not  be  competent  for  the  company  to  limit  that  control,  in  respect  to 
foreign  traffic,  to  certain  points  on  its  road  and  exclude  other  points:"  162 
U.  S.  192,  16  Sup.  Ct.  703,  40  L.  ed.  938. 

38  As  to  the  power  of  Congress  to  regulate  charges  for  carrying  between 


16  THE    COMMERCE    CLAUSE. 

is  entirely  within  a  state,  and  is  in  no  way  connected  with 
any  arrangement  for  interstate  transportation,  tlien,  even 
though  the  railroad  also  engages  in  interstate  transporta- 
tion,^^  the  charge  for  the  strictly  local  transportation  is 
within  the  control  of  the  state  and  is  not  within  the  con- 
trol of  Congress.^" 

two  places  within  the  same  state  upon  a  waterway  which  is  entirely  within 
the  state  but  which  connects  with  the  ocean,  see  p.  42,  infra. 

39  A  state  may  control  the  charges  for  local  transportation  by  an  interstate 
railroad:  Stone  v.  Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  6  Sup.  Ct. 
334,  388,  1191,  29  L.  ed.  630;  Stone  v.  Illinois  C.  R.  Co.  (1886)  116  U.  S. 
347,  6  Sup.  Ct.  348,  388,  1191,  29  L.  ed.  650,  overruling  Illinois  C.  R.  Co. 
V.  Stone  (1884)  20  Fed.  468,  475;  Farmers'  L.  &  T.  Co.  v.  Stone  (1884)  20 
Fed.  270,  upon  this  point.  See  also  Smyth  v.  Ames  (1898)  169  U.  S.  466, 
521,  522,  18  Sup.  Ct.  418,  424,  42  L.  ed.  819;  Missouri  P.  Ry.  Co.  v.  Kansas 
(1910)  216  U.  S.  262,  283,  30  Sup.  Ct.  330,  337,  54  L.  ed.  472;  Allen  v. 
Pullman's  P.  C.  Co.  (1903)  191  U.  S.  171,  24  Sup.  Ct.  39,  48  L.  ed.  134; 
Erie  R.  Co.  v.  Purdy  (1902)  185  U.  S.  148,  22  Sup.  Ct.  605,  46  L.  ed.  847; 
Chesapeake  &  0.  Ry.  Co.  v.  Kentucky  (1900)  179  U.  S.  388,  21  Sup.  Ct. 
101,  45  L.  ed.  243;  Sands  v.  Manistee  R.  I.  Co.  (1887)  123  U.  S.  288,  8 
Sup.  Ct.  113,  31  L.  ed.  149;  6  Mich.  L.  Rev.  158.  Compare  Norfolk  &  W.  R. 
Co.  V.  Pennsylvania  (1890)  136  U.  S.  114,  119,  10  Sup.  Ct.  958,  960,  34  L. 
ed.  394;  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S.  1,  30  Sup.  Ct.  190, 
54  L.  ed.  355;  Pullman  Co.  v.  Kansas  (1910)  216  U.  S.  56,  30  Sup.  Ct.  232, 
54  L.  ed.  378;  Ludwig  v.  Western  U.  T.  Co.  (1910)  216  U.  S.  146,  30  Sup. 
Ct.  280,  54  L.  ed.  423.    In  the  four  cases  last  cited  there  were  dissents. 

40  See  United  States  Constitution,  Tenth  Amendment;  White,  J.,  in  Em- 
ployers' Liability  Cases — Howard  v.  Illinois  C.  R.  Co.  (1908)  207  U.  S.  463, 
464,  493,  502,  28  Sup.  Ct.  141,  143,  147,  52  L.  ed.  297;  Illinois  C.  R.  Co.  v. 
McKendree  (1906)  203  U.  S.  514,  27  Sup.  Ct.  153,  51  L.  ed.  298;  Illinois 
C.  R.  Co.  v.  Edwards  (1906)  203  U.  S.  531,  27  Sup.  Ct.  159,  51  L.  ed.  305; 
Allen  V.  Pullman's  P.  C.  Co.  (1903)  191  U.  S.  171,  24  Sup.  Ct.  39,  48  L.  ed. 
134;  Addyston  P.  &  S.  Co.  v.  United  States  (1899)  175  U.  S.  211,  247,  20 
Sup.  Ct.  96,  109,  44  L.  ed.  130;  Kansas  v.  Colorado  (1907)  206  U.  S.  46,  89, 
90,  27  Sup.  Ct.  655,  664,  51  L.  ed.  950;  Sands  v.  Manistee  R.  L  Co.  (1887) 
123  U.  S.  288,  8  Sup.  Ct.  113,  31  L.  ed.  149;  Wabash,  St.  L.  &  P.  Ry.  Co.  v. 
Illinois  (1886)  118  U.  S.  557,  564,  7  Sup.  Ct.  4,  7,  30  L.  ed.  244;  Telegraph 
Co.  V.  Texas  (1881)  105  U.  S.  460,  466,  26  L.  ed.  1067;  Gibbons  v.  Ogden 
(1824)  9  Wheat.  1,  194,  195,  6  L.  ed.  23;  Cooke,  Commerce  Clause,  p.  42; 
St.  Louis  &  S.  F.  R.  Co.  v.  Hadley  (1909)  168  Fed.  317;  and  ca^es  cited 
in  note  39,  supra.  Compare  Interstate  Com.  Comn.  v.  Goodrich  T.  Co. 
(1912)  224  U.  S.  194,  214,  215,  32  Sup.  Ct.  436,  440,  441,  50  L.  ed.  729; 
Second  Employers'  Liability  Cases — Mondou  v.  New  Y.,  N.  H.  &  H.  R.  Co. 


LOCAL   RATES.  17 

Local  rates  which  aifect  interstate  rates  indirectly. 

11.  State  regulations  of  charges  for  transportation 
which  is  strictly  local  are  valid  even  when  they  have  an 
indirect  effect  upon  interstate  rates.  A  long  and  short 
haul  statute  where  both  distances  are  within  the  state 
does  not  affect  interstate  commerce  so  directly  as  to  be 
unconstitutional.^^  The  court  said,  "It  may  be  that  the 
enforcement  of  the  state  regulation  forbidding  discrimi- 
nation in  rates  in  the  case  of  articles  of  a  like  kind  car- 
ried for  different  distances  over  the  same  line  may  some- 
what affect  commerce  generally;  but  we  have  frequently 
held  that  such  a  result  is  too  remote  and  indirect  to  be 
regarded  as  an  interference  with  interstate  commerce; 

(1912)  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  ed.  327;  Baltimore  &  O.  R.  Co.  v. 
Interstate  Com.  Comn.  (1911)  221  U.  S.  612,  31  Sup.  Ct.  621,  55  L.  ed.  878; 
9  Col.  L.  Rev.  38;  21  Harv.  L.  Rev.  at  48;  sec.  25,  infra. 

41  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503,  22  Sup.  Ct. 
95,  46  L.  ed.  298.  See  also  Louisville  &  N.  R.  Co.  v.  Kentucky  (1896)  161 
U.  S.  677,  701,  16  Sup.  Ct.  714,  723,  40  L.  ed.  849,  for  a  further  discussion 
of  the  subject.  And  see  Henderson  B.  Co.  v.  Kentucky  (1897)  166  U.  S. 
150,  17  Sup.  Ct.  532,  41  L.  ed.  953,  where  an  interstate  bridge  company  was 
taxed  on  the  portion  of  its  intangible  property  which  was  within  the  state. 
"Clearly  the  tax  was  not  a  tax  on  the  interstate  business  carried  on  over  or 
by  means  of  the  bridge,  because  the  bridge  company  did  not  transact  such 
business.  That  business  was  carried  on  by  the  persons  and  corporations  which 
paid  the  bridge  company  tolls  for  the  privilege  of  using  the  bridge.  The  fact 
that  the  tax  in  question  was  to  some  extent  affected  by  the  amount  of  the 
tolls  received,  and  therefore  might  be  supposed  to  increase  the  rate  of  tolls,  is 
too  remote  and  incidental  to  make  it  a  tax  on  the  business  transacted.  This 
very  question  was  decided  in  [New  Y.,  L.  E.  &  W.  R.  Co.  v.  Pennsylvania 
(1895)  158  U.  S.  431,  439,  15  Sup.  Ct.  89G,  899,  39  L.  ed.  1043]  where  it  was 
said:  'It  is  argued  that  the  imposition  of  a  tax  on  tolls  might  lead  to  increas- 
ing them  in  an  effort  to  throw  their  burden  on  the  carrying  company.  Such  a 
result  is  merely  conjectural,  and,  at  all  events,  too  remote  and  indirect  to 
be  an  interference  with  interstate  commerce.  The  interference  with  the 
commercial  power  must  be  direct,  and  not  the  mere  incidental  effect  of  the 
requirement  of  the  usual  proportional  contribution  to  public  maintenance.' 
The  only  franchises  treated  here  as  the  subject  of  taxation  were  those  granted 
by  the  state  of  Kentucky:"  166  U.  S.  153,  17  Sup.  Ct.  533,  41  L.  ed,  954. 
Four  justices  dissented. 


18  THE    COMMERCE   CLAUSE. 

that  the  interference  with  the  commercial  power  of  the 
general  government  to  be  unlawful  must  be  direct,  and 
not  the  merely  incidental  effect  of  enforcing  the  police 
powers  of  a  state. ' '  "^^ 

By  regulating  rates  between  points  which  are  entirely 
within  its  limits  a  state  may  affect  interstate  rates  very 
materially  even  where  the  effect  is  only  indirect.  It  may 
name  a  local  rate  to  a  point  near  the  border  of  the  state 
which  added  to  the  rate  from  that  point  to  an  interstate 
point  will  be  so  much  less  than  the  through  rate  from 
the  place  of  original  shipment  to  the  place  of  final  desti- 
nation that,  assuming  that  shippers  or  passengers  may 
interrupt  through  interstate  transportation  in  order  to 
secure  the  local  rates  for  a  portion  of  the  distance,'*^  the 
railroads  will  in  practice  be  compelled  to  lower  the  rates 
for  through  interstate  transportation.  And  yet  in  such 
cases  the  state  may  regulate  the  local  rates,  at  least  in  the 
absence  of  federal  action.^ ^  Or,  to  give  another  illustra- 
tion, there  may  be  two  railroads  which  carry  between  two 
towns  of  the  same  state,  one  of  which  roads  is  entirely 

4ii  183  U.  S.  at  518,  519,  22  Sup.  Ct.  at  102,  46  L.  ed.  at  306.  See  also 
Ames  V.  Union  P.  Ry.  Co.  (1894)  64  Fed.  165,  172. 

43  But  on  this  point  see  sec.  13  et  seq.,  infra. 

44  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  33 
Sup.  Ct.  729,  57  L.  ed.  1511;  Allen  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (1913)  230 
U.  S.  553,  33  Sup.  Ct.  1030,  57  L.  ed.  1625;  Southern  P.  Co.  v.  Campbell 
(1913)  230  U.  S.  537,  33  Sup.  Ct.  1027,  57  L.  ed.  1610;  Oregon  R.  &  N. 
Co.  V.  Campbell  (1913)  230  U.  S.  525,  33  Sup.  Ct.  1026,  57  L.  ed.  1604; 
Chesapeake  &  O.  Ry.  Co.  v.  Conley  (1913)  230  U.  S.  513,  33  Sup.  Ct.  985, 
57  L.  ed.  1597;  Missouri  Rate  Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913) 
230  U.  S.  474,  33  Sup.  Ct.  975,  57  L.  ed.  1571.  See  also  Louisville  &  N.  R.  Co. 
V.  Siler  (1911)  186  Fed.  176;  Oregon  R.  &  N.  Co.  v.  Campbell  (1909)  173 
Fed.  957;  Perkins  v.  Northern  P.  Ry.  Co.  (1907)  155  Fed.  445,  453;  North- 
ern P.  Ry.  Co.  V.  Lee  (1912)  199  Fed.  621;  In  re  Arkansas  Rate  Cases 
(1911)  187  Fed.  290;  Woodside  v.  Tonopah  &  G.  R.  Co.  (1911)  184  Fed. 
358.  Compare  Shepard  v.  Northern  P.  Ry.  Co.  (1911)  184  Fed.  765;  Rey- 
nolds, Railway  Valuation — Is  it  a  Panacea?  8  Col.  L.  Rev.  265. 


LOCAL   RATES.  19 

within  the  state  and  the  other  of  which  passes  outside  of 
the  state  for  a  portion  of  the  distance.  And  in  this  case 
also  a  federal  court  has  held  that  while  the  state  might 
not  limit  the  charges  of  the  latter  road  directly  ^^  it  may 
limit  directly  the  charges  of  the  former  road  although  the 
interstate  road  is  thereupon  obliged  in  order  to  compete 
for  the  traffic  to  make  similar  rates  for  its  own  transporta- 
tion between  those  two  points.^® 

Local  rates  which  affect  interstate  rates  directly. 

12.  Where,  however,  state  regulations  of  intrastate 
charges  directly  affect  interstate  rates  they  are  unconsti- 
tutional. Thus  a  state  may  not  forbid  a  railroad  to  charge 
more  for  carrying  between  two  points  within  the  state  than 
it  charges  for  a  longer  interstate  haul  which  includes  the 
shorter  route  when  the  prohibition  would  have  a  direct 
effect  upon  interstate  commerce  ;^'^  and  it  may  not  require 

45  See  sec.  7,  supra. 

46  St.  Louis  &  S.  F.  E.  Co.  v.  Hadley  (1909)  168  Fed.  317,  340.  See  also 
Louisville  &  N.  R.  Co.  v.  Interstate  Com.  Comn.  (1910)  184  Fed.  118,  127; 
Houston  &  T.  C.  R.  Co.  v.  Storey  (1906)   149  Fed.  499. 

47  Louisville  &  N.  R.  Co.  v.  Eubank  (1902)  184  U.  S.  27,  22  Sup.  Ct.  277, 
46  L.  ed.  416.  The  company  was  commanded  to  cl^ange  the  rate  for  either  the 
local  haul  or  the  interstate  haul.  In  the  case  considered  the  earnings  from 
the  local  haul  were  more  important.  Therefore,  rather  than  lower  its  local 
rate,  the  company  would  have  raised  its  interstate  rate,  although  on  its  so 
doing  its  competitors  would  have  secured  its  interstate  traffic.  It  seems, 
however,  that  if  the  local  earnings  had  been  less  important  than  the  inter- 
state earnings  the  court  should  have  held  that  the  regulation  did  not  vio- 
late the  commerce  clause,  for  in  that  case  the  company  would  have  retained 
its  interstate,  and  lowered  its  local,  rate,  which  was  probably  the  main  re- 
sult sought  by  the  state.  It  seems  also  that  if  a  minimum  interstate  rate 
had  been  fixed  by  the  federal  government,  and,  therefore,  that  rate  could 
not  have  been  reduced  by  the  carrier,  the  long  and  short  haul  provision 
should  have  been  sustained,  for  it  would  have  affected  only  the  changeable 
rate — that  for  the  shorter,  and  not  for  the  interstate,  haul.  The  court 
lends  support  to  this  position  by  referring  to  a  hypothetical  case  in  which 
local  rates  are  fixed  by  state  statute  and  then  saying,  "Congress  does  not  in- 
terfere  with  local   rates  by   adopting   their   sum   as   the   interstate   rate." 


20  THE    COMilERCE    CLAUSE. 

a  railroad  to  carry  local  traffic  at  inadequate  rates  on  the 
ground  that  it  is  compensated  by  the  profitableness  of  its 
interstate  business.*^  But  where  property  is  used  for 
both  local  and  interstate  transportation  a  railroad  is  en- 
titled to  earn  from  local  transportation  an  income  upon 

These  words,  of  course,  must  be  read  in  their  proper  connection,  for  if  they 
referred  to  local  rates  which  are  fixed  by  the  carrier  the  dictum  would  be 
inconsistent  with  the  decision  in  the  case  under  consideration.  If  Con- 
gress were  allowed  to  adopt  as  the  interstate  rate  the  sum  of  the  local  rates 
established  by  the  carrier  it  might  in  some  cases  directly  affect  local  rates, 
according  to  the  present  decision,  and  Congress  may  not  interfere  with 
local  commerce  to  any  greater  extent  than  the  states  may  interfere  with 
interstate  commerce:  the  Tenth  Amendment  is  fully  as  much  a  part  of  the 
Federal  Constitution  as  is  the  eighth  section  of  Article  I.  (See  Kansas  v. 
Colorado  (1907)  206  U.  S.  46,  89,  90,  27  Sup.  Ct.  655,  664,  51  L.  ed.  950; 
and  note  40,  supra.)  It  seems,  therefore,  that  if  Congress  should  declare 
that  through  rates  should  be  the  sum  of  the  local  rates  as  fixed  by  the  car- 
riers, the  question  whether  the  act  could  constitutionally  be  applied  should 
depend  in  each  case  on  whether  the  local  earnings  or  the  interstate  earnings 
were  of  more  importance  to  the  carrier.  It  is  true  that  the  view  of  the  case 
taken  in  this  note  does  not  thoroughly  coincide  with  that  taken  in  portions 
of  the  opinion.  Thus  the  court  says,  "The  vice  of  the  provision  lies  in  the 
regulation  of  rates  between  points  wholly  within  the  state,  by  the  rates 
which  obtain  between  points  outside  of  and  those  which  are  within  the 
state."  But  both  earlier  and  later  in  the  opinion  the  decision  is  based  on 
the  effect  of  the  regulation,  and  the  facts  of  the  case  do  not  warrant  refer- 
ence for  it  for  the  establishment  of  any  other  test  of  constitutionality. — 
With  the  discussion  in  this  note  compare  dicta  in  Minnesota  Rate  Cases 
—Simpson  v.  Shepard  (1913)  230  U.  S.  352,  33  Sup.  Ct.  729,  57  L.  ed.  1511. 
48  Smyth  V.  Ames  (1898)  169  U.  S.  466,  541,  18  Sup.  Ct.  418,  432,  42  L. 
ed.  819;  Northern  P.  Ry.  Co.  v.  Keyes  (1898)  91  Fed.  47;  Morgan's  L.  &  T. 
R.  Co.  V.  Railroad  Comn.  of  La.  (1911)  127  La.  636,  665,  53  So.  890,  000; 
Seaboard  A.  L.  Ry.  Co.  v.  Railroad  Comn.  of  Ala.  (1907)  155  Fed.  792,  806; 
State  V.  Seaboard  A.  L.  Ry.  (1904)  48  Fla.  129,  37  So.  314;  and  see  Minne- 
sota Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  435,  33  Sup.  Ct. 
729,  755,  57  L.  ed.  1511.  Compare  Grand  R.  &  I.  Ry.  Co.  v.  Osborn  ( 1904)  193 
U.  S.  17,  24  Sup.  Ct.  310,  48  L.  ed.  598,  where  the  court  upheld  regulations 
based  upon  the  entire  gross  earnings  per  mile  within  the  state.  In  that 
case  the  company  was  estopped  from  denying  the  adequacy  of  the  rates.  In 
Commissioner  of  Railroads  v.  Wabash  R.  Co.  (1901)  126  Mich.  113,  85  N. 
W.  466,  (1900)  123  Mich.  669,  82  N.  W.  526,  which  arose  under  the  same 
statute,  it  was  not  contended  that  the  local  rates  so  fixed  were  inadequate 
when  considered  by  themselves.  Consider  also  Washington  S.  Ry.  Co.  v. 
Commonwealth   (1911)    112  Va.  515,  520,  71  S.  E.  539,  541. 


SEPARATE  INTKASTATE   TEANSPORTATION.  21 

only  that  proportion  of  the  whole  value  of  the  property 
within  the  state  which  the  local  traffic  bears  to  the  inter- 
state traffic.^^ 

SEPARATE    INTRASTATE    TRANSPORTATION    OF    PERSONS 

OR  GOODS  COMING  FROM  OR  DESTINED  TO 

ANOTHER  STATE. 

The  problem. 

13.  But  what  mle  of  law  governs  where  persons  or 
goods  are  carried  entirely  within  one  state  under  a  con- 
tract which  relates  only  to  that  transportation  but  before 
or  after  that  local  transportation  they  are  carried  inter- 
state? Is  the  charge  for  such  local  transportation  subject 
only  to  state  regulation,  as  in  the  case  of  a  charge  for 
transportation  which  is  strictly  local?  Or  is  it  subject 
only  to  federal  control,  as  in  the  case  of  a  rate  which  is 
strictly  interstate?  Or  is  it  in  a  class  by  itself,  subject  to 
state  control  in  the  absence  of  federal  action  but  also  sub- 
ject to  paramount  action  by  Congress?  Or  is  the  charge 
subject  to  the  control  of  one  government  if  the  transpor- 
tation is  made  under  some  circumstances  but  to  the  con- 
trol of  another  government  if  other  circumstances  exist: 
in  other  words,  when  a  carrier  or  a  traveller  or  a  shipper 

49  See  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352, 
435,  33  Sup.  Ct.  729,  755,  57  L.  ed.  1511 ;  State  v. United  States  Ex.  Co.  ( 1900) 
81  Minn.  87,  91,  83  N.  W.  465,  460,  50  L.  R.  A.  667,  669;  State  v.  Atlantic 
C.  L.  R.  Co.  (1904)  48  Fla.  146,  37  So.  657,  affirmed  in  Atlantic  C.  L.  R. 
Co.  V.  Florida  (1906)  203  U.  S.  256,  27  Sup.  Ct.  108,  51  L.  ed.  174;  State  v. 
Seaboard  A.  L.  Ry.  (1904)  48  Fla.  129,  144,  145,  37  So.  314,  320,  affirmed 
in  Seaboard  A.  L.  Ry.  v.  Florida  (1906)  203  U.  S.  261,  27  Sup.  Ct.  109,  51  L. 
ed.  175;  and  sec.  165,  infra.  Compare  Washington  S.  Ry.  Co.  v.  Common- 
wealth (1911)  112  Va.  515,  520,  71  S.  E.  539,  541.  There  are  expressions 
in  Smyth  v.  Ames  (1808)  169  U.  S.  466,  541,  18  Sup.  Ct.  418,  432,  42  L.  ed. 
819,  referred  to  in  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U. 
S.  257,  267,  22  Sup.  Ct.  900,  904,  46  L.  ed.  1151,  which,  standing  alone,  seem 
inconsistent  with  this  position,  but  if  they  are  read  in  their  proper  connec- 
tion the  inconsistency  disappears. 


22  THE    COMMERCE    CLAUSE. 

interrupts  through  transportation  because  of  a  desire  to 
secure  local  rates  for  a  part  of  the  distance,  is  the  power 
to  regulate  the  rates  within  the  state  different  from  that 
which  would  exist  if  there  were  other  reasons  for  making 
the  local  transportation  under  a  separate  arrangement? 

These  questions  are  obviously  of  great  importance,  for 
if  either  the  carrier  or  its  patron  has  a  constitutional 
right  to  make  a  break  in  through  transportation  simply  in 
order  to  secure  local  rates  for  part  of  the  distance  Con- 
gress is  without  power  to  regulate  some  charges  for  trans- 
portation which  are  in  substance  interstate  ;^°  and,  on  the 
other  hand,  if,  where  goods  are  produced  in  one  state  and 
consumed  in  another,  every  movement  of  those  goods  from 
the  moment  they  are  produced  until  they  are  finally  con- 
sumed is  to  be  regarded  as  a  part  of  interstate  transpor- 
tation. Congress  has  power  over  a  large  amount  of  trans- 
portation which  is  in  substance  strictly  local.^^ 

The  test. 

14.  In  order  to  answer  these  questions  it  is  necessary  to 

50  Compare  the  provision  of  the  Interstate  Commerce  Act,  quoted  iu  note 
68,  infra,  in  which  railroads  are  forbidden  to  interrupt  through  interstate 
transportation  for  any  such  purpose. 

51  Goods  are  in  the  course  of  interstate  transportation  "'when  actually 
started  in  the  course  of  transportation  to  another  state,  or  delivered  to  a 
carrier  for  such  transportation.  There  must  be  a  point  of  time  when  they 
cease  to  be  governed  exclusively  by  the  domestic  law  and  begin  to  be  gov- 
erned and  protected  by  the  national  law  of  commercial  regulation,  and  that 
moment  seems  to  us  to  be  a  legitimate  one  for  this  purpose,  in  which  they 
commence  their  final  movement  for  transportation  from  the  state  of  their 
origin  to  that  of  their  destination.  When  the  products  of  the  farm  or  the 
forest  are  collected  and  brought  in  from  the  surrounding  country  to  a  town 
or  station  serving  as  an  entrepot  for  that  particular  region,  whether  on  a 
river  or  a  line  of  railroad,  such  products  are  not  yet  exports,  nor  are  they 
in  process  of  exportation,  nor  is  exportation  begun  until  they  are  committed 
to  the  common  carrier  for  transportation  out  of  the  state  to  the  state  of 
their  destination,  or  have  started  on  their  ultimate  passage  to  that  state:" 
Coe  V.  Errol  (1886)  116  U.  S.  517,  525,  6  Sup.  Ct.  475,  477,  29  L.  ed.  715. 


SEPARATE  INTRASTATE   TRANSPORTATION.  23 

determine  whether  the  two  acts  of  transportation  are  in 
reality  separate  transactions.  If  they  are  entirely  separ- 
ate the  part  of  the  transportation  which  is  between  points 
within  the  state  is  subject  only  to  state  control;  but  if 
they  are  not  in  reality  separate  transactions  both  acts  are 
subject  to  federal  control,  although  in  some  instances  at 
least  they  must  be  regarded  as  subject  to  state  control 
unless  and  until  Congress  has  legislated.  Of  course,  the 
main  difficulty  is  in  determining  whether  the  transactions 
are  to  be  regarded  as  separate. 

Tax  and  original  package  cases. 

15.  Let  us  first  note  by  way  of  illustration  two  lines  of 
cases  which  do  not  deal  with  rate  regulation. 

A  state  has  no  power  to  tax  property  within  its  borders 
which  is  actually  in  transit  to  another  state;  ^^  but,  on  the 
other  hand,  it  may  tax  goods  within  its  territory  which 
are  not  in  the  course  of  continuous  interstate  transporta- 
tion, even  though  they  have  already  been  transported  for 
some  distance  and  though  it  is  intended  that  they  shall  be 
transported  ultimately  out  of  the  state.^^ 

52  See,  e.  g.,  Kelley  v.  Rhoads  (1903)  188  U.  S.  1,  7,  23  Sup.  Ct.  259,  262, 
47  L.  ed.  359. 

53  In  Susquehanna  C.  Co.  v.  South  Amboy  (1913)  228  U.  S.  665,  33  Sup. 
Ct.  712,  67  L.  ed.  1015,  it  was  held  that  a  state  may  tax  coal  brought  from 
another  state  and  stored,  while  awaiting  orders  or  means  of  transportation 
for  orders  already  received,  for  further  shipment  to  ports  in  other  states 
or  countries.  In  Bacon  v.  Illinois  (1913)  227  U.  S.  504,  515,  516,  33  Sup. 
Ct.  299,  302,  303,  57  L.  ed.  615,  it  was  held  that  the  state  might  tax  gi-ain 
Avhich  the  purchaser  had  placed  in  an  elevator  for  inspection,  grading,  etc. 
The  fact  that  the  owner  had  the  privilege  of  reshipping  under  the  original 
contracts,  and  actually  intended  to  forward  the  grain,  did  not  render  the 
grain  immune  from  local  taxation  until  it  had  been  actually  committed  to 
the  carriers  for  transportation.  In  General  Oil  Co.  v.  Crain  (1908)  209  U. 
S.  211,  28  Sup.  Ct.  475,  52  L,  ed.  754,  it  was  held  that  a  law  of  Tennessee 
which  provided  for  the  inspection  of  oil  might  be  enforced  as  to  oil  which 
had  been  brought  from  another  state  and  which  was  temporarily  stored  in 


24  THE   COMMERCE    CLAUSE. 

So  also,  where  goods  have  been  brought  from  another 
state  the  state  into  which  they  have  been  brought  may 
not,  in  the  absence  of  federal  authorization,^^  forbid  their 
sale  in  the  original  packages  ;^'^  yet  if  bulk  has  been 
broken  or  ownership  of  the  goods  has  been  transferred 
after  the  goods  have  entered  the  state,  those  goods  are 
subject  to  the  regulations  which  the  state  into  which  they 
have  been  brought  may  make  concerning  their  sale  in  that 
state.^<^ 

Tennessee  for  convenience  in  distribution,  but  which  it  was  intended  should 
ultimately  be  loaded  into  other  receptacles  and  shipped  to  points  outside 
the  state.  Have  these  cases  any  bearing  upon  the  question  whether  when 
there  is  milling  in  transit  the  total  transportation  is  in  reality  divided  into 
two  separate  transactions?  In  Coe  v.  Errol  (1886)  116  U.  S.  517,  6  Sup. 
Ct.  475,  29  L.  ed.  715,  the  court  sustained  a  local  tax  upon  logs  which  had 
been  cut  at  one  place  in  the  state  and  hauled  to  another  place  therein, 
whence  the  owner  intended  ultimately  to  float  them  to  another  state,  upon 
the  ground  that  the  logs  had  not  begun  "their  final  movement  for  transpor- 
tation from  the  state  of  their  origin  to  that  of  their  destination."  See  116 
U.  S.  525,  527,  528,  6  Sup.  Ct.  477,  478,  479,  29  L.  ed.  718,  719,  and  note  51, 
supra.  That  case  was  followed  in  Diamond  M.  Co.  v.  Ontonagon  (1903) 
188  U.  S.  82,  23  Sup.  Ct.  266,  47  L.  ed.  394.  In  both  cases  the  interruption 
in  transportation  was  intentionally  a  prolonged  one.  On  the  question 
whether  every  interruption  in  transportation  would  be  similarly  treated  see 
Bacon  v.  Illinois  (1913)  227  U.  S.  504,  515,  516,  33  Sup.  Ct.  299,  302,  303, 
57  L.  ed.  615;  General  Oil  Co.  v.  Crain  (1908)  209  U.  S.  211,  228,  230, 
28  Sup.  Ct.  475,  481,  482,  52  L.  ed.  754,  and  cases  cited  in  that  opinion; 
Swift  &  Co.  v.  United  States  (1905)  196  U.  S.  375,  398,  399,  25  Sup.  Ct. 
276,  280,  49  L.  ed.  518;  Johnson  v.  Southern  P.  Co.   (1904)    196  U.  S.  1,  22, 

25  Sup.  Ct.  158,  163,  49  L.  ed.  872;  Kelley  v.  Rhoads  (1903)  188  U.  S. 
1,  7,  23  Sup.  Ct.  259,  262,  47  L.  ed.  359;  Blackstone  v.  Miller  (1903)  188 
U.  S.  189,  203,  23  Sup.  Ct.  277,  47  L.  ed.  439;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Texas  (1907)  204  U.  S.  403,  413,  414,  27  Sup.  Ct.  360,  363,  51  L.  ed.  540; 
Delaware  &  H.  C.  Co.  v.  Commonwealth  (1888)  1  Mona.  (Pa.)  36,  42,  17 
Atl.  175,  178;  Rosenbaum  G.  Co.  v.  Chicago,  R.  I.  &  T.  Ry.  Co.  (1903)  130 
Fed.  46,  48. 

54  Yet  see  In  re  Rahrer  (1891)  140  U.  S.  545,  11  Sup.  Ct.  865,  35  L.  ed. 
572. 

55Leisy  v.  Hardin   (1890)    135  U.  S.  100,  10  Sup.  Ct.  681,  34  L.  ed.  128. 

56  Cook  V.  Marshall  County  (1905)  196  U.  S.  261,  25  Sup.  Ct.  233,  49  L. 
ed.  471;  Austin  v.  Tennessee  (1900)  179  U.  S.  343,  21  Sup.  Ct.  132,  45  L. 
ed.  225;  May  v.  New  Orleans   (1900)    178  U.  S.  496,  20  Sup.  Ct.  976,  44  L. 


SEPAEATE   INTRASTATE   TRANSPORTATION.  25 

Some  rates  under  local  bills  subject  to  federal  control. 

16.  The  court  has,  however,  held  that  the  Interstate 
Commerce  Act  is  violated  where  a  terminal  company 
which  is  part  of  a  railroad  and  steamship  system  gives 
special  facilities  to  a  shipper  in  the  same  state  who  ships 
to  it  under  a  local  bill  of  lading  goods  intended  ultimately 
for  foreign  transportation  by  another  part  of  that  sys- 
tem ;^'^  that  where  goods  are  carried  under  a  local  bill  of 
lading  between  two  points  within  a  state  and  then  placed 
on  board  a  ship  for  transportation  out  of  the  state  the 
transportation  within  the  state  must  be  regarded  as  part 
of  interstate  transportation  and  therefore  not  subject  to 
state  control,  even  though  at  the  time  when  the  goods  are 
tendered  for  transportation  no  decision  has  been  reached 
as  to  their  ultimate  destination;^^  and  that  a  state  may 
not  regulate  the  charges  for  carrying  between  two  points 
within  its  borders  under  a  local  bill  of  lading  lumber 
which  is  from  the  beginning  of  the  transportation  destined 
for  export ;  and  this  is  true  even  though  the  further  trans- 

ed.  1165.  Compare  McDermott  v.  Wisconsin  (1913)  228  U.  S.  115,  33  Sup. 
Ct.  431,  57  L.  ed.  754;  Adams  Ex.  Co.  v.  Kentucky  (1907)  206  U.  S.  129, 
27  Sup.  Ct.  606,  51  L.  ed.  987;  Rearick  v.  Pennsylvania  (1906)  203  U.  S. 
507,  27  Sup.  Ct.  159,  51  L.  ed.  295;  Heyman  v.  Southern  Ry.  Co.  (1906) 
202  U.  S.  270,  27  Sup.  Ct.  104,  51  L.  ed.  178;  Scliollenberger  v.  Pennsyl- 
vania (1898)  171  U.  S.  1,  18  Sup.  Ct.  757,  43  L.  ed.  49;  Collins  v.  New 
Hampshire  (1898)  171  U.  S.  30,  18  Sup.  Ct.  768,  43  L.  ed.  60.  For  further 
discussion  of  the  original  package  question  see  Cooke,  The  Commerce 
Clause,  pp.  27,  161,  253;  Howland,  The  Police  Power  and  Interstate  Com- 
merce, 4  Harv.  L.  Rev.  221;  Trickett,  The  Original  Package  Ineptitude,  6 
Col.  L.  Rev.  161;  Reeder,  Chief  Justice  Fuller,  59  U.  of  Pa.  L.  Rev.  4-7;  note 
64  infra;  The  Original  Package  Question  Resurrected  Under  the  Pure  Food 
Law,  73  Cent.  L.  J.  165. — On  the  bearing  of  these  eases  on  rate  regulation 
see,  however,  opinion  in  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas  (1907)  204  U.  S. 
403,  412,  27  Sup.  Ct.  360,  362,  51  L.  ed.  540. 

5T  Southern  P.  T.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  498,  31 
Sup.  Ct.  279,  55  L.  ed.  310. 

58  Railroad  Comn.  of  Ohio  v.  Worthington  (1912)  225  U.  S.  101,  32  Sup. 
Ct.  653,  56  L.  ed.  1004. 


26  THE    COMMERCE    CLAUSE. 

portation  is  by  another  carrier  and  there  is  some  neces- 
sary delay  at  the  time  of  transshipment.^^ 

This  series  of  cases  seems  to  furnish  a  sufficient  answer 
to  the  suggestion  which  was  made  in  one  of  the  earlier 
cases  ®^  that  if  a  portion  of  the  transportation  were  by  a 

S9 Texas  &  N.  O.  R.  Co.  v.  Sabine  T.  Co.  (1913)  227  U.  S.  Ill,  33  Sup.  Ct. 
229,  57  L.  ed.  442.— See  also  Railroad  Comn.  of  La.  v.  Texas  &  P.  Ry.  Co. 
(1913)  229  U.  S.  336,  33  Sup.  Ct.  837,  67  L.  ed.  1215. 

60  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Interstate  Com.  Comn.  (1896)  162 
U.  S.  184,  192,  16  Sup.  Ct.  700,  703,  40  L.  ed.  935.  There  is  a  casual  sugges- 
tion in  Texas  &  P.  Ry.  Co.  v.  Interstate  Com.  Comn.  (1896)  162  U.  S.  197, 
212,  16  Sup.  Ct.  666,  672,  40  L.  ed.  940,  referred  to  with  approval  in  /  r- 
mour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  78,  28  Sup.  Ct.  428,  4;  ', 
52  L.  ed.  681,  that  the  Interstate  Commerce  Act  as  it  then  stood  had  in  vie  .v 
the  whole  field  of  commerce  excepting  commerce  entirely  within  a  state. 
(On  the  change  in  the  punctuation  of  the  act  by  the  amendment  of  1906, 
see  United  States  v.  Colorado  &  N.  W.  R.  Co.  (1907)  157  Fed.  321,  327,  15 
L.  R.  A.  N.  S.  167,  173.)  Yet  federal  courts  held  that  the  original  act 
applied  to  a  local  railroad,  of  which  the  control  or  management  was  not  in 
common  with  that  of  a  connecting  carrier  to  points  outside  the  state,  only 
when  it  carried  under  an  arrangement  for  continuous  interstate  or  foreign 
transportation:  United  States  v.  Chicago,  K.  &  S.  R.  Co.  (1897)  81  Fed. 
783 ;  Interstate  Com.  Comn.  v.  Bellaire,  Z.  &  C.  Ry.  Co.  ( 1897 )  77  Fed.  942 ; 
Ex  parte  Koehler  (1887)  30  Fed.  867;  New  J.  F.  E.  v.  Central  R.  Co. 
(1888)  2  I.  C.  C.  84.  See  also  United  States  v.  Wood  (1906)  145  Fed.  405, 
411;  United  States  v.  Geddes  (1904)  131  Fed.  452  (1903)  180  Fed.  480. 
Compare  United  States  v.  Colorado  &  N.  W.  R.  Co.  (1907)  157  Fed.  321,  15 
L.  R.  A.  N.  S.  167;  Corcoran  v.  Louisville  &  N.  R.  Co.  (1907)  125  Ky.  634, 
101  S.  W.  1185.  There  may,  however,  be  an  arrangement  for  interstate 
transportation  although  goods  are  not  carried  under  through  bills:  United 
States  V.  New  Y.  C.  &  H.  R.  R.  Co.  (1907)  153  Fed.  630;  United  States  v. 
Seaboard  Ry.  Co.  (1897)  82  Fed.  563.  Compare  Heiserman  v.  Burlington, 
C.  R.  &  N.  Ry.  Co.  (1884)  63  Iowa,  732,  18  N.  W.  903.  And  a  local  road 
which  grants  rates  lower  than  its  local  rates  on  interstate  freight  received 
from  one  connecting  line  must,  by  virtue  of  the  Interstate  Commerce  Act, 
grant  the  same  lower  rates  on  freight  brought  to  it  from  points  outside  the 
state  by  another  connecting  line:  Augusta  S.  R.  Co.  v.  Wrightsville  &  T. 
R.  Co.  (1890)  74  Fed.  522.  In  accordance  with  this  case  it  would  probably 
be  held  that  a  local  road  which  enters  into  arrangements  for  continuous 
interstate  transportation  for  the  benefit  of  some  shippers  must  enter  into 
similar  arrangements  for  the  benefit  of  all  other  shippers  to  the  same 
destination.  The  decision  is  sound  if  analogous  to  that  in  Cincinnati,  N. 
0.  &  T.  P.  Ry.  Co.  V.  Interstate  Com.  Comn.,  cited  in  note  37,  supra;  see 
also  Southern  P.  T.  Co.  v.  Interstate  Com.  Comn.,  cited  in  note  57,  supra. 


SEPARATE   INTRASTATE   TRANSPORTATION.  27 

railroad  which  was  entirely  within  one  state  and  which 
did  not  participate  in  any  agreements  for  through  inter- 

Compare  Kentucky  &  I.  B.  Co.  v.  Louisville  &  N.  R.  Co.  (1889)  37  Fed.  567; 
Gamble-Robinson  Comn.  Co.  v.  Chicago  &  N.  W.  Ry.  Co.  (1909)  168  Fed. 
161,  21  L.  R.  A.  N.  S.  982;  Louisville  &  N.  R.  Co.  v.  West  C.N.  S.  Co.  (1905) 
198  U.  S.  483,  25  Sup.  Ct.  745,  49  L.  ed.  1135.— The  above  decisions  relate  to 
the  Interstate  Commerce  Act.  But  it  is  important  to  know  also  the  extent 
of  the  federal  power.  In  Pacific  C.  Ry.  Co.  v.  United  States  (1909)  173  Fed. 
448;  United  States  v.  Colorado  &  N.  W.  R.  Co.  (1907)  157  Fed.  321,  15  L. 
R.  A.  N.  S.  167;  United  States  v.  Colorado  &  N.  W.  R.  Co.  (1907)  157  Fed. 
342,  it  is  held  that  the  federal  safety  appliance  act  applies  to  a  railroad 
which  is  entirely  within  one  state  and  which  does  not  participate  in  con- 
tracts for  through  interstate  transportation;  while  the  contrary  position 
is  taken  in  United  States  v.  Geddes  (1904)  131  Fed.  452  (1903)  180  Fed. 
480.  Compare  Southern  Ry.  Co.  v.  United  States  (1911)  222  U.  S.  20,  32 
Sup.  Ct.  2,  56  L.  ed.  72,  discussed  in  sec.  25,  infra. — In  The  Daniel  Ball 
(1870)  10  Wall.  557,  19  L.  ed.  999,  a  federal  law  requiring  the  inspection 
and  licensing  of  vessels  was  applied  to  a  vessel  which  carried  goods  coming 
from  and  goods  destined  to  places  in  other  states,  but  which  did  not  itself 
leave  the  state  nor  run  in  connection  with  or  continuation  of  any  line  of 
vessels  or  railway  making  an  interstate  trip.  The  court  said  that  "when- 
ever a  commodity  has  begun  to  move  as  an  article  of  trade  from  one  state 
to  another,  commerce  in  that  commodity  between  the  states  has  commenced. 
The  fact  that  several  diflferent  and  independent  agencies  are  employed  in 
transporting  the  commodity,  some  acting  entirely  in  one  state,  and  some 
acting  through  two  or  more  states,  does  in  no  respect  affect  the  character 
of  the  transaction.  To  the  extent  in  which  each  agency  acts  in  that  trans- 
action, it  is  subject  to  the  regulation  of  Congress."  The  court  expressly 
disclaimed  any  intention  of  laying  down  a  rule  concerning  land  transporta- 
tion. See  also  Railroad  Co.  v.  Maryland  (1874)  21  Wall.  456,  22  L.  ed. 
678;  Pullman's  P.  C.  Co.  v.  Pennsylvania  (1891)  141  U.  S.  18,  23,  32,  11 
Sup.  Ct.  876,  878,  881,  35  L.  ed.  613.  Yet  it  is  doubtful  whether  a  diflferent 
rule  would  be  applied  to  railroads  simply  because  they  transport  on  land. 
Norfolk  &  W.  R.  Co.  v.  Pennsylvania  (1890)  136  U.  S.  114,  119,  10  Sup.  Ct. 
958,  960,  34  L.  ed.  394,  was  based  upon  The  Daniel  Ball.  The  railroad, 
however,  had  made  traffic  contracts  with  other  roads.  See  also  Diamond 
M.  Co.  V.  Ontonagon  (1903)  188  U.  S.  82,  92,  23  Sup.  Ct.  266,  270,  47  L. 
ed.  394,  and  references  in  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illinois  (1886)  118 
U.  S.  557,  7  Sup.  Ct.  4,  30  L.  ed.  244,  to  Hall  v.  De  Cuir  (1877)  95  U.  S. 
485,  24  L.  ed.  547.— With  The  Daniel  Ball  compare  Veazie  v.  Moor  (1852) 
14  How.  568,  14  L.  ed.  545,  which  is  cited  in  Covington  &  C.  B.  Co.  v.  Ken- 
tucky (1894)  154  U.  S.  204,  210,  14  Sup.  Ct.  1087,  1089,  38  L.  ed.  962,  as 
authority  for  the  proposition  that  the  states  have  sole  power  to  regulate 
the  navigation  of  waters  which  are  entirely  within  one  state  and  do  not 
form  part  of  a  continuous  water  highway  to  a  place  beyond  its  limits,  "not- 


28  THE    COIVIMERCE    CLAUSE. 

state  transportation  whatever,  that  portion  of  the  trans- 
portation might  not  be  subject  to  federal  control. 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas. 

17.  So  also  the  above  cases,  while  in  no  wise  calling  into 
question  the  actual  decision  in  the  leading  case  of  Gulf,  C. 
&  S.  F.  Ey.  Co.  V.  Texas,^^  show  the  weakness  of  the  test 
of  constitutionality  which  was  relied  upon  by  the  court  at 
that  time. 

In  that  case  a  dealer  who  had  bought  grain  which  was 
not  then  within  the  state,  sold  grain  to  be  delivered  at  an- 
other point  within  the  same  state,  and  soon  afterwards 
shipped  the  grain  which  he  had  in  the  meanwhile  received 
from  the  other  state,  for  that  purpose  securing  a  new  bill 
of  lading.  The  court  held  that  he  was  entitled  to  trans- 
portation at  the  local  rate.  It  noted  that  he  might  have 
performed  his  obligation  by  supplying  other  grain,  but 
it  laid  stress  upon  the  fact  that  the  interstate  transporta- 
tion and  the  intrastate  transportation  were  under  separ- 
ate contracts  with  the  railroads,  and  declared  that  "In 
many  cases  it  would  work  the  greatest  injustice  to  a  car- 
rier if  it  could  not  rely  on  the  contract  of  shipment  it  has 
made,  know  whether  it  was  bound  to  obey  the  state  or 
federal  law,  or,  obeying  the  former,  find  itself  mulcted  in 
penalties  for  not  obeying  the  law  of  the  other  jurisdiction, 
simply  because  the  shipper  intended  a  transportation 
beyond  that  specified  in  the  contract  .  .  .  The  carrier 
ought  to  be  able  to  depend  upon  the  contract  which  it 

•withstanding  the  fact  that  the  goods  or  passengers  carried  or  travelling 
over  such  highway  between  points  in  the  same  state  may  ultimately  be 
destined  for  other  states,  and,  to  a  slight  extent,  state  regulation  may  be 
said  to  interfere  with  interstate  commerce."  See  also  comment  on  The 
Daniel  Ball  in  Watkins,  Shippers  and  Carriers  of  Interstate  Freight,  p.  88. 

61  (1907)  204  U.  S.  403,  27  Sup.  Ct.  360,  51  L.  ed.  540. 


SEPARATE   INTRASTATE   TRANSPORTATION.  29 

has  made,  and  must  conform  to  the  liability  imposed  by 
that  contract. ' '  ^^ 

This  opinion  was  prepared  by  a  justice  whose  views  as 
to  the  bearing  of  a  contract  between  carrier  and  shipper 
upon  interstate  rates  were  not  accepted  by  a  majority  of 
the  court  in  a  case  which  was  decided  only  a  year  later.® ^ 

Is  the  existence  of  separate  contracts  conclusive? 

18.  Indeed,  considering  the  question  sim.ply  upon  prin- 
ciple, it  seems  clear  that  while  the  existence  of  two  separ- 
ate contracts  for  the  two  portions  of  the  total  transporta- 
tion tends  to  show  that  there  are  two  separate  transac- 
tions, it  does  not  show  that  fact  conclusively,^^  for  the 

62  204  U.  S.  at  414,  27  Sup.  Ct.  at  363,  51  L.  ed.  547.— Grain  had  been 
shipped  from  South  Dakota  to  Texarkana,  Texas,  and  there  delivered  by  the 
consignee  to  A,  by  surrendering  to  him  the  bill  of  lading.  A  reshipped  the 
grain  to  himself  at  Goldthwaite,  Texas,  where  he  had  contracted  to  deliver 
grain  to  B.  The  reshipment  was  made  by  surrendering  the  bill  of  lading  to 
Texarkana  and  receiving  in  its  place  a  new  bill  of  lading  from  Texarkana 
to  Goldthwaite.  If  the  rate  from  Texarkana  to  Goldthwaite  could  be 
treated  as  part  of  an  interstate  rate  the  charge  for  transportation  would 
be  higher  than  if  the  company  were  limited  to  the  rate  fixed  by  the  state 
commission.  The  company  charged  the  higher  rate  and  was  fined  by  a 
state  court  for  extortion,  which  judgment  was  sustained  by  the  highest 
court  of  the  state  and  by  the  Supreme  Court  of  the  United  States.  It  may 
be  noted,  although  the  Supreme  Court  gave  no  weight  to  these  facts,  that 
neither  the  original  consignee  nor  A  had  any  warehouse  at  Texarkana, 
that  the  grain  was  not  unloaded  at  that  point,  and  that  it  remained  there 
only  five  days.  Compare  references  to  reasons  for  this  decision  as  given  in 
Texas  &  N.  O.  R.  Co.  v.  Sabine  T.  Co.  (1913)  227  U.  S.  Ill,  33  Sup.  Ct. 
229,  57  L.  ed.  442. 

63  Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  28  Sup.  Ct.  428, 
52  L.  ed.  681,  cited  in  note  65,  infra. 

64  It  may  furnish  a  convenient  working  test  under  ordinary  circum- 
stances, but  not  an  absolute  test.  Perhaps  it  may  be  regarded  as  somewhat 
like  the  original  package  rule  for  determining  whether  or  not  articles 
which  have  been  brought  into  a  state  have  become  subject  to  the  jurisdic- 
tion of  that  state,  a  convenient  working  rule,  but  one  which  is  not  always 
strictly  applied:  see  Willoughby  on  the  Constitution,  pp.  644,  650;  Pren- 
tice  and  Egan,   The   Commerce   Clause,   70;    Trickett,   The   Original   Pack- 


30  THE    COMMERCE    CLAUSE. 

making  of  separate  contracts  may  be  the  mere  observance 
of  a  formality  in  the  effort  to  destroy  the  federal  jurisdic- 
tion over  part  of  what  would  otherwise  be  interstate 
transportation  throughout.  And  it  is  not  clear  that  the 
federal  jurisdiction  may  be  destroyed  in  that  manner. 
The  rate  which  a  shipper  must  pay  for  transportation  does 
not  depend  simply  upon  agreement  with  the  carrier:  even 
a  definite  contract  with  the  carrier  will  not  enable  him  to 
secure  interstate  transportation  at  less  than  the  published 
rate.''^  And  if  the  making  of  a  contract  between  the 
parties  does  not  affect  the  power  of  the  federal  govern- 
ment over  transportation  which  is  substantially  inter- 
state, the  manner  in  which  the  parties  arrange  for  the 
transportation  cannot  be  of  overwhelming  importance. 

Undisclosed  intentions. 

19.  But  while  the  relation  between  the  parties  does  not 
depend  entirely  upon  contract,  it  does  not  follow  that 

age  Ineptitude,  6  Col.  L.  Eev.  161;  Purity  E.  &  T.  Co.  v.  Lynch  (1912)  226 
U.  S.  192,  33  Sup.  Ct.  44,  57  L.  ed.  184;  Cook  v.  Marshall  County  (1905) 
196  U.  S.  261,  25  Sup.  Ct.  233,  49  L.  ed.  471;  Austin  v.  Tennessee  (1900) 
179  U.  S.  343,  21  Sup.  Ct.  132,  45  L.  ed.  225. 

65  Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  28  Sup.  Ct.  428, 
52  L.  ed.  681;  Kansas  C.  S.  Ry.  Co.  v.  Albers  Comn.  Co.  (1912)  223  U.  S. 
573,  32  Sup.  Ct.  316,  56  L.  ed.  556;  Louisville  &  N.  R.  Co.  v.  Mottley  (1911) 
219  U.  S.  467,  31  Sup.  Ct.  265,  55  L.  ed.  297;  New  Y.  C.  &  H.  R.  R.  Co.  v. 
United  States  (No.  2)  (1909)  212  U.  S.  500,  504,  29  Sup.  Ct.  309,  311,  53 
L.  ed.  624;  Texas  &  P.  Ry.  Co.  v.  Mugg  (1900)  202  U.  S.  242,  26  Sup.  Ct. 
628,  50  L.  ed.  1011.  See  also  Chicago  &  A.  R.  Co.  v.  Kirby  (1912)  225  U. 
S.  155,  32  Sup.  Ct.  648,  56  L.  ed.  1033;  United  States  v.  Miller  (1912)  223 
U.  S.  599,  32  Sup.  Ct.  323,  56  L.  ed.  568;  Philadelphia,  B.  &  W.  R.  Co.  v. 
Schubert  (1912)  224  U.  S.  603,  32  Sup.  Ct.  589,  56  L.  ed.  911;  American 
S.  R.  Co.  V.  Delaware,  L.  &  W.  Ry.  Co.  (1912)  200  Fed.  652;  Clegg  v.  St. 
Louis  &  S.  F.  R.  Co.  (1913)  203  Fed.  971.  There  is,  however,  no  reason 
to  doubt  that  if  in  the  Armour  case  the  shipper  had  acted  in  time  it  might 
have  secured  an  injunction  restraining  the  railroad  from  establishing  or 
from  maintaining  the  higher  rate,  even  though,  so  long  as  the  higher  rate 
remained  in  force,  the  shipper  could  not  lawfully  pay  less  than  that  rate. 


SEPAJIATE   INTRASTATE   TRANSPORTATION.  31 

duties  may  be  imposed  upon  a  railroad  merely  by  the  un- 
disclosed intention  of  a  shipper  or  consignee  or  may  be 
imposed  retroactively  when  those  intentions  are  disclos- 
ed. On  the  contrary,  it  may  well  be  the  case  that  the 
rights  and  duties  of  the  railroad  for  the  first  part  of  the 
total  transportation  may  be  definitely  established  when 
that  part  of  the  transportation  takes  place,^®  or  even  as 
far  back  as  the  time  when  the  shipper  makes  the  demand 
for  that  transportation,^"  and  the  rates  for  that  part  of  the 
transportation  may  then  be  unalterable.  Yet  even  though 
the  relation  between  the  parties  with  regard  to  what  had 
already  happened  could  not  then  be  changed,  there  seems 
to  be  no  reason  why  the  federal  government  should  not 
be  able  to  reach  out  directly  and  punish  a  shipper  or  pas- 
senger for  his  conduct  if  he  has  made  a  break  in  inter- 
state transportation  simply  in  order  to  secure  local  rates 
for  part  of  the  distance.  The  Interstate  Commerce  Act 
expressly  forbids  the  railroad  companies  to  interiTipt  the 
through  interstate  transportation  of  freight  for  any  such 
purpose.^^    It  seems  that  to  that  extent  at  least  that  sec- 

66  See  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas  (1907)  204  U.  S.  403,  413,  27 
Sup.  Ct.  360,  363,  51  L.  ed.  540. 

67  See  In  the  Matter  of  Through  Routes  and  Through  Rates  (1907)  12  I. 
C.  C.  163.  Consider  also  Drinker,  Interstate  Commerce  Act,  sec.  237,  and 
cases  cited  in  latter  part  of  note  34,  supra, 

68  "It  shall  be  unlawful  for  any  common  carrier  subject  to  the  provisions 
of  this  act  to  enter  into  any  combination,  contract,  or  agreement,  expressed 
or  implied,  to  prevent,  by  change  of  time  schedule,  carriage  in  different 
cars,  or  by  any  other  means  or  devices,  the  carriage  of  freights  from  being 
continuous  from  the  place  of  shipment  to  the  place  of  destination;  and  no 
break  of  bulk,  stoppage,  or  interruption  made  by  such  common  carrier  shall 
prevent  the  carriage  of  freights  from  being  and  being  treated  as  one  con- 
tinuous carriage  from  the  place  of  shipment  to  the  place  of  destination, 
unless  such  break,  stoppage  or  interruption  was  made  in  good  faith  for 
some  necessary  purpose,  and  without  any  intent  to  avoid  or  unnecessarily 
interrupt  such  continuous  carriage  or  to  evade  any  of  the  provisions  of 
this  Act:"  Act  Feb.  4,  1887,  c.  104,  sec.  7,  24  U.  S.  Stats,  at  L.  379,  382, 
1  Supp.  to  Rev.  Stats.  529,  530,  3  Fed.  Stats.  An.  808,  832. 


32  THE    COMMERCE    CLAUSE. 

tion  of  the  act  is  constitutional.  And  it  seems  that  if 
there  were  a  similar  prohibition  upon  shippers  and  pas- 
sengers that  prohibition  also  would  be  constitutional. 

Auxiliary  services. 

20.  The  Interstate  Commerce  Act  empowers  the  com- 
mission to  establish  rates  applicable  to  the  receipt,  deliv- 
ery, elevation  and  transfer  in  transit  of  goods  in  the 
course  of  interstate  railroad  transportation,  and  the  Su- 
preme Court  has  enforced  provisions  of  the  act  referring 
to  elevation,^^  terminal  and  switching  services.^'' 

Before  the  enactment  of  this  provision  the  Supreme 
Court  sustained  a  law  which  regulated  the  charges  for 
transferring  from  a  canal-boat  to  an  ocean  steamer  grain 
which  was  apparently  being  carried  from  a  place  in  an- 
other state  to  a  foreign  port.'^^    The  court,  however,  gave 

69  Union  P.  R.  Co.  v.  Updike  G.  Co.  (1911)  222  U.  S.  215,  32  Sup.  Ct. 
39,  56  L.  ed.  171;  Interstate  Com.  Comn.  v.  Diffenbaugh  (1911)  222  U.  S. 
42,  32  Sup.  Ct.  22,  56  L.  ed.  83.  See  also  Elwood  G.  Co.  v.  St.  Joseph  &  G.  I. 
Ry.  Co.   (1913)   202  Fed.  845. 

70  United  States  v.  Union  S.  Y.  &  T.  Co.  (1912)  226  U.  S.  286,  33  Sup.  Ct. 
83,  57  L.  ed.  226.     See  also  Southern  P.  T.  Co.  v.  Interstate  Com.  Comn. 

(1911)  219  U.  S.  498,  31  Sup.  Ct.  279,  55  L.  ed.  310,  which  arose  under  the 
Interstate  Commerce  Act;  United  States  v.  Terminal  R.  Assn.  of  St.  Louis 

(1912)  224  U.  S.  383,  412,  32  Sup.  Ct.  507,  516,  56  L.  ed.  810,  which  arose 
under  the  Anti-Trust  Act;  and  St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Scale  ( 1913) 
229  U.  S.  156,  33  Sup.  Ct.  651,  57  L.  ed.  1129,  Avhich  relates  to  the  Em- 
ployers' Liability  Act. 

71  New  York  ex  rel.  Annan  v.  Walsh,  decided  with  Budd  v.  New  York 
(1892)  143  U.  S.  517,  12  Sup.  Ct.  468,  36  L.  ed.  247.  See  also  People  v. 
Budd  (1889)  117  N.  Y.  1,  9,  22,  22  N.  E.  670,  673,  678,  5  L.  R.  A.  559. 
Compare  State  v.  Omaha  E.  Co.  (1906)  75  Neb.  654,  110  N.  W.  874.  The 
court  said,  in  deciding  the  Annan  case  with  others,  "So  far  as  the  statute 
in  question  is  a  regulation  of  commerce,  it  is  a  regulation  of  commerce  only 
on  the  waters  of  the  state  of  New  York.  It  operates  only  within  the  limits 
of  that  state,  and  is  no  more  obnoxious  as  a  regulation  of  interstate  com- 
merce than  was  the  statute  of  Illinois  in  respect  to  warehouses,  in  Munn  v. 
Illinois.  It  is  of  the  same  character  with  navigation  laws  in  respect  to 
navigation  within  the  state,  and  laws  regulating  wharfage  rates  within  the 


SEPAJIATE   INTRASTATE   TRANSPORTATION  33 

only  slight  attention  to  the  bearing  of  the  commerce 
clause  upon  the  subject. 

The  court  has  also  sustained  a  state  law  which  imposed 
a  franchise  tax  upon  a  local  cab  service  which  connected 

state,  and  other  kindred  laws:"  143  U.  S.  545,  12  Sup.  Ct.  476,  36  L.  ed. 
256.  Munn  v.  Illinois  (1876)  94  U.  S.  113,  24  L.  ed.  77,  and  Brass  v.  North 
Dakota  (1894)  153  U.  S.  391,  14  Sup.  Ct.  857,  38  L.  ed.  757,  do  not  go  so 
far  as  the  Annan  case,  for  they  involve  primarily  storage  charges.  In 
Munn  V.  Illinois  the  court  says  (p.  135)  that  the  warehouses  "are  used 
as  instruments  by  those  engaged  in  state  as  well  as  those  engaged  in  inter- 
state commerce,  but  they  are  no  more  necessarily  a  part  of  commerce  itself 
than  the  dray  or  cart  by  which,  but  for  them,  the  grain  would  be  trans- 
ferred from  one  railroad  station  to  another.  Incidentally  they  may  become 
connected  with  interstate  commerce,  but  not  necessarily  so.  Their  regu- 
lation is  a  thing  of  domestic  concern,  and,  certainly,  until  Congress  acts 
in  reference  to  their  interstate  relations,  the  state  may  exercise  all  the 
powers  of  government  over  them,  even  though  in  so  doing  it  may  indirectly 
operate  upon  commerce  outside  its  immediate  jurisdiction."  The  Munn 
case  differs  from  the  Annan  case  in  that  it  does  not  appear  that  the  main 
use  of  the  Munn  warehouse  was  the  prompt  transfer  of  grain  from  one 
carrier  to  another.  Decisions  sustaining  navigation  laws  do  not  bear  on 
the  question  directly.  In  the  absence  of  congressional  action  a  state  may 
enact  some  regulations  concerning  the  navigation  of  waters  which  are  en- 
tirely within  the  state,  but  which  form  part  of  a  continuous  highway  for 
interstate  commerce:  see  cases  at  end  of  note  91,  infra.  And,  Congress 
having  passed  no  laws  upon  the  subject,  the  court  upholds  state  laws  which 
authorize  individuals  and  companies  having  control  of  wharves  and  im- 
proved waterways  to  collect  charges  named  by  the  state  from  those  who 
use  such  facilities,  even  though  they  are  carrying  goods  to  or  from  other 
states:  Ouachita  P.  Co.  v.  Aiken  (1887)  121  U.  S.  444,  7  Sup.  Ct.  907,  30 
L.  ed.  976;  Transportation  Co.  v.  Parkersburg  (1883)  107  U.  S.  691,  2  Sup. 
Ct.  733,  27  L.  ed.  584;  Packet  Co.  v.  Catlettsburg  (1882)  105  U.  S.  559,  26 
L.  ed.  1169.  See  also  Weems  S.  Co.  v.  People's  S.  Co.  (1909)  214  U.  S.  345, 
29  Sup.  Ct.  661,  53  L.  ed.  1024;  Atlantic  &  P.  T.  Co.  v.  Philadelphia  (1903) 
190  U.  S.  160,  163,  23  Sup.  Ct.  817,  818,  47  L.  ed.  995;  Lindsay  &  Phelps 
Co.  V.  Mullen  (1900)  176  U.  S.  126,  148,  154,  20  Sup.  Ct.  325,  333,  335,  44 
L.  ed.  400;  Monongahela  N.  Co.  v.  United  States  (1893)  148  U.  S.  312,  13 
Sup.  Ct.  622,  37  L.  ed.  463.  Compare  Harmon  v.  Chicago  (1893)  147  U.  S. 
396,  13  Sup.  Ct.  306,  37  L.  ed.  216.  The  statutes  were  contested  by  com- 
panies which  used  the  improvements,  not  by  those  who  controlled  them. 
But  see  Southern  P.  T.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  498, 
31  Sup.  Ct.  279,  55  L.  ed.  310,  cited  in  sec.  16,  supra,  and  discussion  in 
Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  33  Sup. 
Ct.  729,  57  L.  ed.  1511. 


34  THE    COMMERCE    CLAUSE. 

with  an  interstate  feiT}^  and  railroad  ser^dce  furnished  by 
the  same  company  but  under  separate  contracts  with  its 
patrons,  the  court  declaring  that  the  transportation  in 
the  cabs  was  not  part  of  interstate  transportation.'^ - 

But  while  in  a  case  which  arose  under  the  Interstate 
Commerce  Act  there  is  a  dictum  by  a  circuit  court  of  ap- 
peals that  carting  to  and  from  stations  is  an  independent 
business  which  is  not  usually  carried  on  by  the  com- 
panies themselves  nor  usually  within  the  scope  of  the  act 
or  the  power  of  Congress, '^^  yet  in  a  case  which  subse- 

72  New  York  v.  Knight  (1904)  192  U.  S.  21,  24  Sup.  Ct.  202,  48  L.  ed. 
325.  With  this  case  we  must  compare  Swift  &  Co.  v.  United  States  (1905) 
196  U.  S.  375,  392,  401,  25  Sup.  Ct.  276,  277,  281,  49  L.  ed.  518,  referred  to  in 
note  74,  infra.  In  the  Knight  case  the  court  said  that  the  service  was  tax- 
able becavise  it  was  contracted  for  independently  and  was,  therefore,  merely 
preliminary  to  interstate  transportation  or  subsequent  thereto.  On  this 
point  see  sees.  16-18,  supra.  Extended  reference  was  made  to  Coe  v.  Errol, 
considered  in  notes  51,  53,  supra,  and  73,  infra.  The  case  of  Detroit,  G.  H. 
&  M.  Ry.  Co.  V.  Interstate  Com.  Comn.  (see  note  73,  infra)  which  was  cited, 
would  add  more  weight  to  the  decision  if  the  cab  service  had  been  rendered 
by  another  company  than  the  one  which  operated  the  ferry  and  the  rail- 
road. See  People  v.  Knight  (1901)  67  N.  Y.  App.  Div.  398,  73  N.  Y.  Supp. 
790  (1902)  171  N.  Y.  354,  64  N.  E.  152,  for  opinions  of  the  lower  courts  in 
the  present  case.  And  it  may  be  interesting  to  compare  the  discussion  in 
The  Robert  W.  Parsons  (1903)  191  U.  S.  17,  32,  24  Sup.  Ct.  8,  13,  48  L. 
ed.  17,  on  supplying  grain  for  canal-boat  horses  Math  the  remarks  in  this 
case  on  supplying  grain  for  cab  horses. — We  must  note  that  the  decision 
in  this  case  deals  with  taxation  and  not  with  rate  regulation :  see  Hanley  v. 
Kansas  C.  S.  Ry.  Co.  (1903)  187  U.  S.  617,  621,  23  Sup.  Ct.  214,  215,  47  L. 
ed.  333;  Old  D.  S.  Co.  v.  Virginia  (1905)  198  U.  S.  299,  306,  25  Sup.  Ct. 
686,  688,  49  L.  ed.  1059;  compare  Covington  &  C.  B.  Co.  v.  Kentucky 
(1894)  154  U.  S.  204,  222,  14  Sup.  Ct.  1087,  1094,  38  L.  ed.  962;  Kidd  v. 
Pearson  (1888)  128  U.  S.  1,  26,  9  Sup.  Ct.  6,  12,  32  L.  ed.  346.  And  it 
deals  with  transportation  by  cabs  and  not  by  railroads.  The  cab  service 
was  unimportant  and  the  court  touched  on  that  fact.  It  was  somewhat 
diiferent  from  the  service  of  an  intrastate  railroad,  which  may  carry  for 
hundreds  of  miles.  It  seems  that  because  of  the  size  of  rowboats  courts  of 
admiralty  do  not  exercise  jurisdiction  over  them:  see  The  Robert  W.  Par- 
sons (1903)  191  U.  S.  17,  33,  24  Sup.  Ct.  8,  13,  48  L.  ed.  80;  compare  191 
U.  S.  30,  24  Sup.  Ct.  12,  48  L.  ed.  78,  79. 

73  This  was  before  the  amendment  of  1906.  The  court  said  that  carting 
to  and  from  stations  "is  a  business  done  almost  exclusively  by  outsiders 


SEPARATE  INTRASTATE  TRANSPORTATION.  35 

quently  arose  under  the  federal  Anti-trust  Act  the  Su- 
preme Court  decided  that  an  agreement  between  inter- 
state shippers  which  included  the  making  of  uniform 
charges  for  cartage  for  delivery  of  their  goods  to  their 
customers  was  in  that  respect  unlawful/'* 

It  seems  that  in  all  cases  such  as  those  which  we  have 
just  considered,  the  charges  for  the  transportation  may 

and  rarely  by  the  railroad  companies,  and  being  usually  done  wholly  within 
the  territorial  limits  of  a  state  is  not  within  the  jurisdiction  of  Congress. 
.  .  .  We  have  no  doubt  that  whenever  it  does  become  an  element  of 
interstate  commerce  it  is  within  the  control  of  Congress  and  falls  within 
the  regulations  of  this  act,  but  in  determining  how  far  its  provisions  apply 
to  cartage  we  should  carefully  keep  in  mind  the  fact  that  it  is  a  separate 
and  independent  business,  not  usually  carried  on  by  the  railroad  compan- 
ies themselves  nor  usually  within  the  scope  of  the  act  or  the  power  of 
Congress:"  Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Interstate  Com.  Comn.  (1896) 
74  Fed.  803,  813.  For  final  decision  see  Interstate  Com.  Comn.  v.  Detroit, 
G.  H.  &  M.  Ry.  Co.  (1897)  167  U.  S.  633,  644,  646,  17  Sup.  Ct.  986,  990, 
42  L.  ed.  310.  See  also  Hirsch  v.  New  E.  N.  Co.  (1908)  129  N.  Y.  App.  Div. 
178,  113  N.  Y.  Supp.  395.  And  in  Coe  v.  Errol  (1886)  116  U.  S.  517,  528, 
6  Sup.  Ct.  475,  479,  29  L.  ed.  715,  a  case  concerning  state  taxation  of  prop- 
erty, the  court  said  that  the  interstate  "movement  does  not  begin  until  the 
articles  have  been  shipped  or  started  for  transportation  from  the  one  state 
to  the  other.  The  carrying  of  them  in  carts  or  other  vehicles,  or  even 
floating  them,  to  the  depot  where  the  journey  is  to  commence  is  no  part  of 
that  journey.  That  is  all  preliminary  work,  performed  for  the  purpose  of 
putting  the  property  in  a  state  of  preparation  and  readiness  for  transpor- 
tation. Until  actually  launched  on  its  way  to  another  state,  or  committed 
to  a  common  carrier  for  transportation  to  such  state,  its  destination  is  not 
fixed  and  certain.  It  may  be  sold  or  otherwise  disposed  of  within  the  state, 
and  never  put  in  course  of  transportation  out  of  the  state.  Carrying  it 
from  the  farm,  or  the  forest,  to  the  depot,  is  only  an  interior  movement  of 
the  property,  entirely  within  the  state,  for  the  purpose,  it  is  true,  but  only 
for  the  purpose,  of  putting  it  into  a  course  of  exportation;  it  is  no  part  of 
the  exportation  itself.  Until  shipped  or  started  on  its  final  journey  out 
of  the  state,  its  exportation  is  a  matter  altogether  in  fieri,  and  not  at  all 
a  fixed  and  certain  thing."    On  this  case  see  also  notes  51,  53,  supra. 

74  Swift  &  Co.  V.  United  States  (1905)  196  U.  S.  375,  392,  401,  25  Sup. 
Ct.  276,  277,  281,  49  L.  ed.  518.  The  court  said  that  cartage  for  which 
the  packers  made  uniform  charges  was  "not  an  independent  matter,  such 
as  was  dealt  with  in  New  York  ex  rel.  Pennsylvania  R.  Co.  v.  Knight 
(1904)  192  U.  S.  21,  24  Sup.  Ct.  202,  48  L.  ed.  325,  (see  note  72,  supra)  but 
a  part  of  the  contemplated  transit — cartage  for  delivery  of  the  goods." 


36  THE    COMMERCE    CLAUSE. 

well  be  regulated  by  the  state  in  the  absence  of  federal 
legislation  which  is  inconsistent  with  such  regulation. 
But  it  also  seems  clear  that  in  so  far  as  such  services  re- 
late to  interstate  transportation  the  charges  for  them 
must  be  subject  to  the  paramount  control  of  Congress/^ 

CHARTERS  AND  CONTRACTS. 

Waiver  of  constitutional  rights,  expressly  and  by  impli- 
cation. 

21.  We  have  already  noted  that  while  the  Constitution 
empowers  Congress  to  regulate  interstate  rates  '^^  the 
states  have  power  to  regulate  local  rates.'^^  The  court  has 
said  that  the  states  may  regulate  local  rates  even  where 
the  railroad  was  chartered  by  the  federal  government,  at 
least  until  Congress  directs  otherwise.'^^    And  it  is  sub- 

75  On  the  question  whether  the  mere  empowering  of  the  Interstate  Com- 
merce Commission  to  regulate  switching  services  deprives  the  state  courts  of 
power  to  enforce  the  common  law  in  the  absence  of  action  by  the  Commission, 
see  Missouri  P.  Ry.  Co.  v.  Larabee  F.  M.  Co.  (1909)  211  U.  S.  612,  29  Sup. 
Ct.  214,  53  L.  ed.  352;  Savage  v.  Jones  (1912)  225  U.  S.  501,  32  Sup.  Ct. 
715,  56  L.  ed.  1182;  with  which  compare  Southern  Ry.  Co.  v.  Reid  (1912) 
222  U.  S.  424,  32  Sup.  Ct.  140,  56  L.  ed.  257 ;  Southern  Ry.  Co.  v.  Reid  & 
Beam  (1912)  222  U.  S.  444,  32  Sup.  Ct.  145,  56  L.  ed.  263;  Northern  P. 
Ry.  Co.  V.  Washington  (1912)  222  U.  S.  370,  32  Sup.  Ct.  160,  56  L.  ed. 
237;  McNeill  v.  Southern  Ry.  Co.  (1906)  202  U.  S.  543,  26  Sup.  Ct.  722, 
50  L.  ed.  1142. 

76  See  sec.  6,  supra. 

77  See  notes  39,  40,  supra. 

78  Smyth  v.  Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819; 
Reagan  v.  Mercantile  T.  Co.  (1894)  154  U.  S.  413,  14  Sup.  Ct.  1060,  3R 
L.  ed.  1028.  See  also  St.  Louis  &  S.  F.  Ry.  Co.  v.  Stevenson  (1895)  156 
U.  S.  667,  15  Sup.  Ct.  491,  39  L.  ed.  574,  (affirming  (1891)  54  Ark.  116, 
15  S.  W.  22)  ;  Thompson  v.  Kentucky  (1908)  209  U.  S.  340,  28  Sup.  Ct. 
533,  52  L.  ed.  822;  Allen  v.  Riley  (1906)  203  U.  S.  347,  3.55.  27  Sup.  Ct. 
95,  98,  51  L.  ed.  216;  South  Carolina  v.  United  States  (1905)  199  U.  S. 
437,  463,  26  Sup.  Ct.  110,  117,  50  L.  ed.  261,  4  A.  &  E.  An.  Cas.  737,  743, 
744;  Murray  v.  Wilson  D.  Co.  (1909)  213  U.  S.  151,  173,  29  Sup.  Ct.  458, 
465,  53  L.  ed.  742;  Cooke,  State  and  Federal  Control  of  Corporations,  23 
Harv.  L.  Rev.  456.     And  a  road  is  not  exempt  from  state  regulation  be- 


CHARTERS  AND  CONTRACTS.  37 

mitted  that  Congress  caimot  direct  otherwise— that  it 
cannot  deprive  the  states  of  their  power  to  regulate  rates 
which  are  strictly  localJ^ 

But,  admitting  that  Congress  has  no'  law-making  power 
over  rates  which  are  strictly  local,  may  it  regulate  such 
rates  by  virtue  of  a  contract  with  the  railroad  granting 
that  power,  if  such  regulations  do  not  conflict  with  any 
state  law?  And  might  the  states  regulate  interstate  rates 
by  virtue  of  contracts  with  the  railroads  if  the  regula- 
tions did  not  conflict  with  any  federal  regulations? 

We  are  assuming,  of  course,  the  existence  of  clear  con- 
tracts. It  seems  that  a  state  does  not  by  the  mere  char- 
tering of  a  railroad  obtain  a  right  to  regulate  its  inter- 
state rates,^^  and,  if  so,  Congress  does  not  by  the  mere 

cause  it  was  granted  land  and  a  right  of  way  by  the  federal  government 
and,  by  virtue  of  acts  of  Congress,  is  a  post  and  military  route:  St.  Louis 
&  S.  F.  Ry.  Co.  V.  Gill  (1891)  54  Ark.  101,  15  S.  W.  18,  11  L.  R.  A.  452. 
On  the  other  hand,  in  Flint  v.  Stone  Tracy  Co.  (1911)  220  U.  S.  107,  31 
Sup.  Ct.  342,  55  L.  ed.  389,  a  federal  law  which  taxed  state  corporations 
was  sustained. 

79  See  notes  39,  40,  supra.  Upon  what  ground  could  railroads  chartered 
by  Congress  claim  exceptional  treatment  as  to  their  local  transportation? 
Has  Congress  any  greater  authority  to  empower  its  railroads  to  conduct 
intrastate  transportation  than  one  state  has  to  empower  its  own  railroads 
to  carry  persons  or  goods  between  points  within  another  jurisdiction  ?  Yet 
with  discussion  in  this  section  and  in  Cooke,  The  Source  of  Authority  to 
Engage  in  Interstate  Commerce,  24  Harv.  L.  Rev.  635;  Cooke,  State  and 
Federal  Control  of  Corporations,  23  Harv.  L.  Rev.  456,  and  note  State 
Interference  with  Federal  Governmental  Agencies,  10  Col.  L.  Rev.  458; 
compare  Fairleigh,  Inquiry  into  Power  of  Congress  to  Regulate  the  Intra- 
state Business  of  Interstate  Railroads,  9  Col.  L.  Rev.  38;  Hudson,  Federal 
Incorporation,  26  Pol.  Sci.  Quar.  63. 

80  See  State  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (1903)  176  Mo.  687,  75  S. 
W.  776,  63  L.  R.  A.  7ol;  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  (1884) 
19  Fed.  679,  711;  and  also  Northern  S.  Co.  v.  United  States  (1904)  193 
U.  S.  197,  345,  24  Sup.  Ct.  436,  460,  48  L.  ed.  679;  Interstate  Com.  Comn. 
V.  Detroit,  G.  H.  &  M.  Ry.  Co.  (1897)  167  U.  S.  633,  642,  17  Sup.  Ct.  986, 
989,  42  L.  ed.  310;  Carroll  v.  Greenwich  Ins.  Co.  (1905)  199  U.  S.  401, 
409,  26  Sup.  Ct.  66,  67,  50  L.  ed.  246 :  National  C.  J.  O.  U.  A.  M.  v.  State 
Council  (1906)  203  U.  S.  151,  162,  27  Sup.  Ct.  46,  48,  51  L.  ed.  132;  Hous- 


38  THE    COMMERCE    CLAUSE. 

act  of  chartering  obtain  control  over  the  local  rates  of  a 
company.  But  those  statements  may  simply  show  what 
weight  the  court  will  give  to  the  act  of  chartering.  We 
are  assuming  the  existence  of  clear  contracts. 

Express  waiver  of  constitutional  rights. 

22.  May,  then,  a  railroad  by  contract  empower  Con- 
gress to  regulate  its  local  rates,  if  such  regulations  do  not 
conflict  with  state  regulations,  and  might  a  railroad  by 
contract  empower  a.  state  to  regulate  its  interstate  rates 
if  such  regulations  did  not  conflict  with  federal  law? 

A  circuit  court  of  appeals,  in  an  opinion  which  was 
prepared  by  Judge  Taft  and  concurred  in  by  Judges  Lur- 
ton  and  Clark,  has  decided  that  a  city  may  by  contract 
bind  a  railroad  to  furnish  interstate  transportation  to  its 
citizens  at  rates  which  do  not  unjustly  discriminate 
against  them.^^  The  court  distinguished  between  the 
power  to  limit  rates  by  law  and  the  power  to  limit  them 
by  contract. 

There  is  also  a  number  of  other  cases  in  the  Supreme 
Court  and  in  state  and  federal  courts  which  assert  that  a 

ton  D.  N.  Co.  V.  Insurance  Co.  of  N.  A.  (1895)  89  Tex.  1,  32  S.  W.  889,  30 
L.  R.  A,  713.  Contra  State  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (1890)  47 
Ohio  St.  130,  23  N.  E.  928,  7  L.  R.  A.  319;  dissenting  opinion  in  Wabash, 
St.  L.  &  P.  Ry.  Co.  V.  Illinois  (1886)  118  U.  S.  557,  7  Sup.  Ct.  4,  30  L. 
ed.  244.  In  the  latter  case  the  prevailing  opinion  does  not  discuss  the  ques- 
tion. In  Covington  &  C.  B.  Co.  v.  Kentucky  (1894)  154  U.  S.  204,  14  Sup. 
Ct.  1087,  38  L.  ed.  962,  where  two  states  chartered  an  interstate  bridge, 
the  court  merely  decided  that  neither  state  alone  may  regulate  the  tolls. 
In  St.  Clair  County  v.  Interstate  S.  &  C.  T.  Co.  (1904)  192  U.  S.  454,  465, 
24  Sup.  Ct.  300,  303,  48  L.  ed.  518,  the  decision  in  the  bridge  case  is  mis- 
stated. See  also  Cooke,  The  Source  of  Authority  to  Engage  in  Interstate 
Commerce,  24  Harv.  L.  Rev.  635,  640,  641;  Cooke,  State  and  Federal  Con- 
trol of  Corporations,  23  Harv.  L.  Rev.  456. 

81  Iron  M.  R.  Co.  v.  City  of  Memphis  (1899)   96  Fed.  113. 


CHARTERS  AND  CONTRACTS.  39 

railroad  cannot,  while  benefitting  by  a  contract,  deny  the 
power  of  a  city  or  state  to  make  that  contract.^^ 

Moreover,  the  United  States  Supreme  Court  refuses  to 
review  the  correctness  of  decisions  by  state  courts  that 

82  Southern  P.  Co.  v.  Portland  (1913)  227  U.  S.  559,  33  Sup.  Ct.  308, 
57  L.  ed.  642;  Interstate  C.  S.  Ry.  Co.  v.  Commonwealth  ( 1907)  207  U.  S.  79, 
28  Sup.  Ct.  26,  52  L.  ed.  Ill;  Grand  R.  &  I.  Ry.  Co.  v.  Osborn  (1904)  193 
U.  S.  17,  24  Sup.  Ct.  310,  48  L.  ed.  598;  Daniels  v.  Tearney  (1880)  102  U. 
S.  415,  26  L.  ed.  187 ;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Zernecke  ( 1902 )  183  U.  S. 
582,22  Sup.  Ct.  229,  46  L.  ed.  339 ;  Merchants'  Nat.  Bank  v.  Sexton  ( 1913) 
228  U.  S.  634,  33  Sup.  Ct.  725,  57  L.  ed.  998;  cases  cited  in  Pullman  Co.  v. 
Kansas  ( 1910)  216  U.  S.  56,  67,  30  Sup.  Ct.  232,  236,  54  L.  ed.  378 ;  National 
M.B.  &  L.  Assn.  v.  Brahan  ( 1904)  193  U.  S.  635,  24  Sup.  Ct.  532,  48  L.  ed.  823 ; 
Cooley,  Constitutional  Limitations,  7th  ed.,  250;  Emporia  v.  Emporia  T. 
Co.  (1913)  88  Kan.  443,  129  Pac.  187;  Potter  v.  Calumet  E.  S.  Ry.  Co. 
(1908)  158  Fed.  521;  Robinson  v.  Harmon  (1908)  157  Mich.  266,  272,  117 
N.  W.  661  (1909)  157  Mich.  276,  122  N.  W.  106;  Simons'  Sons  Co.  v. 
Maryland  T.  &  T.  Co.  (1904)  99  Md.  141,  57  Atl.  193,  63  L.  R.  A.  727; 
Vining  v.  Detroit,  Y.,  A.  A.  &  J.  Ry.  (1903)  133  Mich.  539,  95  N.  W.  542; 
Muncie  N.  G.  Co.  v.  Muncie  (1903)  160  Ind.  97,  66  N.  E.  436,  60  L.  R.  A. 
822;  IMinor  v.  Erie  R.  Co.  (1902)  171  N.  Y.  566,  64  N.  E.  454;  Purdy  v. 
Erie  R.  Co.  (1900)  162  N.  Y.  42,  56  N.  E.  508,  48  L.  R.  A.  669;  People  v. 
Suburban  R.  Co.  (1899)  178  111.  594,  53  N.  E.  349,  49  L.  R.  A.  650;  San 
Diego  L.  &  T.  Co.  v.  National  City  (1896)  74  Fed.  79,  81,  affirmed  on 
another  ground  (1899)  174  U.  S.  739,  19  Sup.  Ct.  804,  43  L.  ed.  1154; 
Westfield  G.  &  M.  Co.  v.  Mendenhall  (1895)  142  Ind.  538,  41  N.  E.  1033; 
Mayor  v.  Manhattan  Ry.  Co.  (1894)  143  N.  Y.  1,  37  N.  E.  494;  Allegheny 
V,  Millville,  E.  &  S.  S.  Ry.  Co.  (1893)  159  Pa.  411,  416,  28  Atl.  202;  Louis- 
ville &  N.  R.  Co.  V.  Railroad  Comn.  (1884)  19  Fed.  679,  711;  Pacific  R.  Co. 
V.  Leavenworth  (1871)  1  Dill.  393,  Fed.  Cas.  No.  10649;  Ferguson  v.  Lan- 
dram  (1868)  5  Bush  (Ky.)  230;  St.  Louis  &  M.  R.  Co.  v.  Kirkwood  (1900) 
159  Mo.  239,  60  S.  W.  110,  53  L.  R.  A.  300.  And  see  Cen.  Dig.,  Const.  L., 
sec.  41;  Dec.  Dig.,  Const.  L.,  sec.  43;  28  Am.  L.  Rev.  405.  Compare  Ameri- 
can S.  &  R.  Co.  V.  Colorado  (1907)  204  U.  S.  103,  27  Sup.  Ct.  198,  51  L. 
ed.  393,  Contra  State  v.  Omaha  &  C.  B.  Ry.  &  B.  Co.  (1901)  113  Iowa,  30, 
84  N.  W.  983,  52  L.  R.  A.  315;  and  see  State  v.  Western  &  A.  R.  Co.  (1912) 
138  Ga,  835,  843,  76  S.  E.  577,  581;  Keefe  v.  Lexington  &  B.  S.  Ry.  Co. 
(1904)  185  Mass.  183,  70  N.  E.  37;  Galveston  &  W.  Ry.  Co.  v.  Galveston 
(1897)  90  Tex.  398,  91  Tex.  17,  39  S.  W.  96,  920,  36  L.  R.  A.  33;  South 
Pasadena  v.  Los  Angeles  T.  Ry.  Co.  (1895)  109  Cal.  315,  41  Pac.  1093; 
Appeal  of  City  of  Pittsburgh  (1886)  115  Pa.  4,  7  Atl.  778;  dissenting 
opinion  in  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illinois  (1886)  118  U.  S.  557, 
588,  7  Sup.  Ct.  4,  19,  30  L.  ed.  244.  In  the  Iowa  case  the  ordinance  was 
clearly  void  for  another  reason,  but  the  remarks  of  the  court  on  the  com- 
merce clause  are  decidedly  unconvincing. 


40  THE    COMMERCE    CLAUSE. 

parties  have  waived  the  benefit  of  constitutional  provi- 
sions or  of  federal  statutes,  taking  the  ground  that  such 
decisions  do  not  involve  federal  questions.^^  These  cases 
necessarily  imply  that  at  least  some  rights  secured  by  fed- 
eral law  may  be  waived. 

But  there  is  another  line  of  cases,  distinguishable  from 
those  just  mentioned  though  of  questionable  consistency 
with  them,  which  holds  void  agreements  by  foreign  cor- 
porations not  to  remove  to  federal  courts  any  cases  which 
may  arise  in  the  future.'^^  It  is,  however,  admitted  that 
the  right  to  remove  a  suit  may  be  waived  in  each  recur- 
ring case.^^ 

Now,  it  is  obvious  that  a  carrier  cannot,  in  any  way, 
exempt  itself  from  the  duty  of  complying  with  the  re- 
quirements of  a  valid  act  of  Congress ;^^  and  it  is  equally 

83  Leonard  v.  Vicksburg,  S.  &  P.  R.  Co.  (1905)  198  U.  S.  416,  422,  25 
Sup.  Ct.  750,  753,  49  L.  ed.  1108,  and  cases  cited  therein;  and  see  Mobile, 
J.  &  K.  C.  R.  Co.  V.  Mississippi  (1908)  210  U.  S.  187,  204,  28  Sup.  Ct.  650, 
656,  52  L.  ed.  1016;  Marrow  v.  Brinkley  (1889)  129  U.  S.  178,  9  Sup.  Ct. 
267,  32  L.  ed.  954.  With  these  cases  compare  Grand  R.  &  I.  Ry.  Co.  v.  Os- 
born   (1904)   193  U.  S.  17,  24  Sup.  Ct.  310,  48  L.  ed.  598. 

84  See  cases  cited  in  Cable  v.  United  S.  L.  I.  Co.  (1903)  191  U.  S.  288, 
306,  307,  24  Sup.  Ct.  74,  77,  78,  48  L.  ed.  188.  But  compare  Security  M.  L. 
Ins.  Co.  V.  Prewitt  (1906)   202  U.  S.  24G,  20  Sup.  Ct.  619,  50  L.  ed.  1013. 

85  On  the  question  of  waiver  of  constitutional  rights  see  also  Schick  v. 
United  States  (1904)  195  U.  S.  65,  24  Sup.  Ct.  826,  49  L.  ed.  99,  (followed 
in  MuUan  v.  United  States  (1909)  212  U.  S.  516,  29  Sup.  Ct.  330,  53  L.  ed. 
632);  Cooley,  Constitutional  Limitations,  7th  ed.,  250;  Cen.  Dig.,  Const. 
L.,  sec.  41;  Dec.  Dig.,  Const.  L.,  sec.  43;  Foster  v.  Morse  (1882)  132  Mass. 
354;  Conde  v.  Schenectady  (190O)  164  N.  Y.  258,  263,  58  N.  E.  130,  131; 
Ferguson  v.  Landram  (1868)  5  Bush  (Ky.)  230;  Hingham  &  Q.  B.  &  T. 
Corp.  V.  County  of  Norfolk  (1863)  88  Mass.  353,  357.  Compare  O'Brien 
V.  Wheelock   (1902)   184  U.  S.  450,  22  Sup.  Ct.  354,  46  L.  ed.  636. 

86  United  States  Constitution,  Article  VI,  cl.  2;  Chicago,  I.  &  L.  Ry. 
Co.  V.  United  States  (1911)  219  U.  S.  486,  497,  31  Sup.  Ct.  272,  275,  55  L. 
ed.  305;  Northern  S.  Co.  v.  United  States  (1904)  193  U.  S.  197,  333,  24 
Sup.  Ct.  436,  455,  48  L.  ed.  679;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley  (1895) 
158  U.  S.  98,  15  Sup.  Ct.  802,  39  L.  ed.  910;  Fitzgerald  v.  Fitzgerald  & 
Mallory  C.  Co.   (1894)   41  Neb.  374,  59  N.  W.  838;   and  see  Chicago,  B.  & 


CHARTERS  AND  CONTRACTS.  41 

obvious  that  a  state  cannot  by  law  deprive  a  carrier  of 
any  right  secured  to  it  by  the  Federal  Constitution  or  by 
a  valid  federal  law;^''^  but  it  certainly  does  not  follow  from 
either  of  these  truisms  that  that  which  is  a  right  and  not 
a  duty  may  not  be  bargained  away ;  and  the  court  has  not 
shown  any  sufficient  reason  for  declaring  that  a  right 
which  may  be  bargained  away  for  one  specific  occasion 
may  not  be  bargained  away  for  all  occasions  which  may 
arise  in  the  future. 

There  is  also  another  line  of  cases  which  is  somewhat 
similar  to  those  which  we  have  just  discussed.  In  them 
the  court  has  held  that  while  a  state  may  forbid  a  carrier 
to  transact  intrastate  business  within  its  borders  with- 
out giving  any  reason  for  its  prohibition,  it  cannot  make 
its  permission  to  transact  such  business  depend  upon  a 
waiver  by  the  carrier  of  its  constitutional  rights.^^    Dis- 

Q.  R.  Co.  V.  Hall  (1913)  229  U.  S.  511,  33  Sup.  Ct.  885,  57  L.  ed.  1306;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly  (1913)  228  U.  S.  702,  33  Sup.  Ct. 
703,  57  L.  ed.  1031;  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  11,  25,  25 
Sup.  Ct.  358,  361,  49  L.  ed.  643;  Missouri,  K.  &  T.  Ry.  Co.  v.  Haber  (1898) 
169  U.  S.  613,  626,  18  Sup.  Ct.  488,  493,  42  L.  ed.  878;  National  M.  B.  & 
L.  Assn.  V.  Brahan  (1904)  193  U.  S.  635,  647-651,  24  Sup.  Ct.  532,  535- 
537,  48  L.  ed.  823;  notes  4,  24,  supra.  Compare  Dallemagne  v.  Moisan 
(1905)   197  U.  S.  169,  174,  25  Sup.  Ct.  422,  424,  49  L.  ed.  709. 

87  See,  on  the  right  to  resort  to  federal  courts,  Madisonville  T.  Co.  v. 
St.  Bernard  M.  Co.  (1905)  196  U.  S.  239,  253,  25  Sup.  Ct.  251,  257,  49 
L.  ed.  462;  Blake  v.  McClung  (1898)  172  U.  S.  239,  255,  19  Sup.  Ct.  165, 
171,  43  L.  ed.  432;  Barrow  S.  Co.  v.  Kane  (1898)  170  U.  S.  100,  111,  18 
Sup.  Ct.  526,  530,  42  L.  ed.  964;  and  cases  there  cited;  Chicago,  R.  I.  &  P. 
Ry.  Co.  V.  Ludwig  (1907)  156  Fed.  152.  Compare  Security  M.  L.  Ins.  Co. 
V.  Prewitt  (1906)  202  U.  S.  246,  26  Sup.  Ct.  619,  50  L.  ed.  1013;  Dillard, 
The  Power  of  a  State  to  Restrict  the  Right  of  a  Foreign  Corporation  to 
Remove  Cases  to  the  United  States  Courts,  40  Chi.  Leg.  News,  316,  323,  336. 

ssHerndon  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  135,  158,  30 
Sup.  Ct.  633,  639,  54  L.  ed.  970;  Southern  Ry.  Co.  v.  Greene  (1910)  216  U. 
S.  400,  30  Sup.  Ct.  287,  54  L.  ed.  536;  Western  U.  T.  Co.  v.  Kansas  (1910) 
216  U.  S.  1,  30  Sup.  Ct.  190,  54  L.  ed.  355;  Pullman  Co.  v.  Kansas  (1910) 
216  U.  S.  56,  30  Sup.  Ct.  232,  54  L.  ed.  378;  Ludwig  v.  Western  U.  T.  Co. 
(1910)  216  U.  S.  146,  30  Sup.  Ct.  280,  54  L.  ed.  423.  Compare  citations  in 
not*  89,  infra. 


42  THE    COilMERCE    CLAUSE. 

senting  justices  have  declared  that  the  court  has  never 
given  any  sufficient  reason  for  its  position,^^  and  their 
statement  seems  to  be  correct;  but  the  court  has,  neverthe- 
less, taken  that  position  in  several  cases.  The  decisions, 
however,  do  not  directly  overrule  the  cases  in  which  the 
court  has  held  that  where  there  is  an  express  contract  a 
railroad  cannot,  while  benefitting  by  the  contract,  deny 
the  power  of  the  city  or  the  state  to  make  that  contract. 

INTERSTATE  AND  INTRASTATE  HIGHWAYS. 

Decisions  concerning  navigation. 

23.  There  remains  for  us  to  note  simply  those  cases 
which  have  arisen  under  what  may  be  termed  the  ' '  inter- 
state highway"  rule.  The  court  in  cases  which  arose  a 
number  of  years  agO'  decided  that  the  federal  government 
has  power  to  regulate  navigation  entirely  within  one 
state  upon  waters  which  by  themselves  or  by  connection 
with  other  waters  form  a  continuous  highway  for  inter- 
state or  foreign  commerce,^"  but  that  the  states  have  ex- 

89  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S.  1,  52,  30  Sup.  Ct.  190,, 
208,  54  L.  ed.  355;  Pullman  Co.  v.  Kansas  (1910)  216  U.  S.  56,  75,  77,  30 
Sup.  Ct.  232,  240,  241,  54  L.  ed.  378.  See  also  Security  M.  L.  Ins.  Co.  v. 
Prewitt  (1906)  202  U.  S.  246,  26  Sup.  Ct.  619,  50  L.  ed.  1013;  Hammond 
P.  Co.  V.  Arkansas  (1909)  212  U.  S.  322,  29  Sup.  Ct.  370,  53  L.  ed.  530; 
Willoughby  On  the  Constitution,  pp.  150,  698 ;  discussion  in  23  Harv.  L. 
Rev.  549-551;  Denver  v.  New  Y.  T.  Co.  (1913)  229  U.  S.  123,  141,  142,  33 
Sup.  Ct.  657,  666,  57  L.  ed.  1101.  Compare  brief  216  U.  S.  at  16;  21 
Harv.  L.  Rev.  215;  Bowman,  The  State's  Power  Over  Foreign  Corpora- 
tions, 9  Mich.  L.  Rev.  549. 

90  The  Montello  (1874)  20  Wall.  430,  22  L.  ed.  391  (1870)  11  Wall. 
411,  20  L.  ed.  191.  Federal  license  and  machinery  regulations  were  applied 
to  a  vessel  which  carried  between  two  places  in  the  same  state  upon  a 
waterwaj^  which  formed  in  connection  with  other  waters  a  continuous  high- 
way to  other  states.  To  some  extent  the  vessel  carried  goods  coming  from 
and  goods  destined  to  points  outside  the  state,  but  this  fact  was  appar- 
ently considered  unimportant.  See  11  Wall.  415,  20  L.  ed.  192.  In  The 
Oyster  Police  Steamers    (1887)    31  Fed.  763,  penalties  for  noncompliance 


INTERSTATE  AND  INTRASTATE  HIGHWAYS.  43 

elusive  power  to  regulate  navigation  upon  intrastate 
waters  which  do  not  form  part  of  such  continuous  high- 
way, although  goods  carried  upon  them  are  destined  to 
other  states.^  ^  And  this  distinction  the  court  based  upon 
the  commerce  clause,  although  it  might  with  far  more 

with  a  federal  inspection  law  were  imposed  upon  police  boats  which  were 
used  entirely  within  the  state;  and  in  the  United  States  v.  Beacham  (1886) 
29  Fed.  284,  a  federal  law  concerning  the  equipment  of  boats  was  applied 
in  the  case  of  an  excursion  steamer  plying  between  two  points  in  the  same 
state.  See  also  The  Daniel  Ball  (1870)  10  Wall.  557,  19  L.  ed.  999;  Lord 
V.  Steamship  Co.  (1880)  102  U.  S.  541,  26  L.  ed.  224  (which  was  explained 
in  Lehigh  V.  R.  Co.  v.  Pennsylvania  (1892)  145  U.  S.  192,  203,  12  Sup.  Ct. 
806,  808,  809,  36  L.  ed.  672;  The  Robert  W.  Parsons  (1903)  191  U.  S.  17, 
35,  24  Sup.  Ct.  8,  14,  48  L.  ed  17)  ;  United  States  v.  Burlington  &  H.  C.  F. 
Co.  (1884)  21  Fed.  331;  The  City  of  Salem  (1889)  38  Fed.  762,  4  L.  R.  A. 
125,  37  Fed.  846,  2  L.  R.  A.  380;  United  States  v.  The  Frank  Sylvia  (1888) 
37  Fed.  155;  The  Hazel  Kirke  (1885)  25  Fed.  601;  Harmon  v.  Chicago 
(1893)  147  U.  S.  396,  13  Sup.  Ct.  306,  37  L.  ed.  216;  Cooke,  The  Com- 
merce Clause,  pp.  91-93;  United  States  v.  Chandler-Dunbar  W.  P.  Co. 
(1913)  229  U.  S.  53,  33  Sup.  Ct.  667,  57  L.  ed.  1063.  Compare  The  Gretna 
Green  (1883)  20  Fed.  901;  Passenger  Cases  (1849)  7  How.  283,  400,  12 
L.  ed.  702;  Montgomery  v.  Portland  (1903)  190  U.  S.  89,  105,  23  Sup.  Ct. 
735,  737,  47  L.  ed.  965;  United  States  v.  Bellingham  B.  B.  Co.  (1900)  176 
U.  S.  211,  215,  20  Sup.  Ct.  343,  344,  44  L.  ed.  437;  Sands  v.  Manistee  R.  I. 
Co.  (1887)  123  U.  S.  288,  295,  8  Sup.  Ct.  113,  116,  31  L.  ed.  149;  Gibbons 
V.  Ogden  (1824)   9  Wheat.  1,  194,  195,  6  L.  ed.  23. 

9iVeazie  v.  Moor  (1852)  14  How.  568,  14  L.  ed.  545.  The  court  decided 
that  a  federal  coasting  license  did  not  grant  to  the  holder  the  right  to  use  an 
improved  waterway  which  was  entirely  within  a  state  and  which  had  no 
navigable  connection  with  places  outside  the  state,  although  a  railroad 
connected  a  point  on  that  waterway  with  the  ocean,  and  it  asserted  that 
Congress  could  not  grant  him  such  power.  The  commerce  while  "availing 
itself  of  those  facilities  was  unquestionably  internal,  although  intermed- 
iately or  ultimately  it  might  become  foreign."  The  case  is  cited  in  Cov- 
ington &  C.  B.  Co.  V.  Kentucky  (1894)  154  U.  S.  204,  210,  14  Sup.  Ct. 
1087,  1089,  38  L.  ed.  962,  as  authority  for  the  proposition  that  the  states 
have  exclusive  power  to  regulate  the  navigation  of  such  waters  "notwith- 
standing the  fact  that  the  goods  or  passengers  carried  or  travelling  over 
such  highway  between  points  in  the  same  state  may  ultimately  be  destined 
for  other  states,  and,  to  a  slight  extent,  the  state  regulations  may  be  said 
to  interfere  with  interstate  commerce."  See  also  Commonwealth  v.  King 
(1889)  150  Mass.  221,  22  N.  E.  905,  5  L.  R.  A.  536;  The  Rockaway  (1907) 
156  Fed.  692,  694. 


44  THE   COMMERCE    CLAUSE. 

propriety  have  based  it  upon  the  grant  of  admiralty  pow- 
ers.»2 

Discussion. 

24.  It  is  improbable,  however,  that  the  distinction 
would  be  applied  in  determining  the  validity  of  state  or 
federal  regulations  of  charges  for  transportation  by 
water  ;^"  and  it  seems  clear  that  authority  over  railroad 
charges  does  not  depend  upon  whether  or  not  the  rail- 
road is  part  of  a  '' continuous  highway"— that  even 
though  a  railroad  itself  extends  into  several  states  its 
charges  for  transportation  which  is  strictly  local  are 
within  the  control  of  the  states  and  are  not  within 
the  control  of  Congress,^^  and  that  a  railroad  which 
carries  under  a  through  bill  of  lading  goods  destined  to 
another  state  would  not  be  subject  to  the  exclusive  power 
of  the  state  while  carrying  within  its  borders  if  at  the 
boundary  of  the  state  the  cars  were  transferred  to  floats 
or  the  goods  were  placed  upon  boats  for  carriage  to  their 
destination.^^ 

92  See  Lehigh  V.  R.  Co.  v.  Pennsylvania  (1892)  145  U.  S.  192,  203,  12 
Sup.  Ct.  806,  808,  809,  36  L.  ed.  672;  The  Lottawanna  (1874)  21  Wall. 
558,  577,  22  L.  ed.  654;  Cooke,  The  Commerce  Clause,  pp.  91-93;  Waite, 
Admiralty  Jurisdiction  and  State  Waters,  11  Mich.  L.  Rev.  580. 

93  And  does  the  grant  of  admiralty  and  maritime  jurisdiction  to  the 
federal  government  (U.  S.  Constitution,  Art.  Ill,  sec.  2)  enable  Congiess 
to  limit  the  charges  for  carrying  between  two  points  within  a  state  by 
means  of  a  waterway  which  connects  with  the  ocean  but  which  is  entirely 
within  the  state?  See  In  re  Garnett  (1891)  141  U.  S.  1,  12,  11  Sup.  Ct. 
840,  842,  35  L.  ed.  631;  The  Robert  W.  Parsons  (1903)  191  U.  S.  17,  24 
Sup.  Ct.  18,  48  L.  ed.  17:  note  18  C.  C.  A.  349;  United  States  v.  Burling- 
ton &  H.  C.  F.  Co.  (1884)  21  Fed.  331. 

94  See  notes  39,  40,  supra. 

95  The  Interstate  Commerce  Act  extends  to  interstate  transportation 
which  is  partly  by  railroad  and  partly  by  water,  and  the  act  does  not  in 
terms  require  that  either  the  railroad  or  the  waterway  be  part  of  a  "con- 
tinuous highway."  See  also  New  York  v.  Knight  (1904)  192  U.  S.  21,  26, 
24  Sup.  Ct.  202,  203,  48  L.  ed.  325;  New  Y.  C.  &  H.  R.  R.  Co.  v.  Board  of 
Chosen  Freeholders   (1913)   227  U.  S.  248,  33  Sup.  Ct.  269,  57  L.  ed.  499. 


INTERSTATE    AND    INTRASTATE    HIGHWAYS.  45 

Safety  appliance  cases. 

25.  In  addition  to  the  continuous  highway  cases  which 
we  have  just  noted,  there  is  also  a  recent  case  ^®  in  which 
the  court,  without  referring  to  those  cases,  has  decided 
that  Congress  may  constitutionally  require  the  equipment 
with  safety  appliances  of  all  locomotives,  cars  and  other 
similar  vehicles  which  are  used  on  any  railroad  which  is 
a  highway  of  interstate  commerce,  even  though  some  of 
the  vehicles  may  be  used  solely  in  local  transportation. 
The  court,  however,  gave  no  attention  whatever  to  the 
question  whether  such  interstate  highway  were  a  continu- 
ous interstate  highway.  And  the  opinion  does  not  indi- 
cate any  desire  upon  the  part  of  the  court  to  overrule  the 
many  earlier  cases  in  which  it  has  delimited  the  respec- 
tive powers  of  Congress  and  of  the  states  over  interstate 
rates  and  over  local  rates. 

96  Southern  Ry.  Co.  v.  United  States  (1911)  222  U.  S.  20,  32  Sup.  Ct. 
2,  56  L.  ed.  72.  See  also  Pedersen  v.  Delaware,  L.  &  W.  R.  Co.  (1913)  229 
U.  S.  146,  33  Sup.  Ct.  648,  57  L.  ed.  1125;  Second  Employers'  Liability 
Cases— Mondou  v.  New  Y.,  N.  H.  &  H.  R.  Co.  (1912)  223  U.  S.  1,  32  Sup. 
Ct.  169,  56  L.  ed.  327;  Chicago  J.  Ry.  Co.  v.  King  (1911)  222  U.  S.  222, 
32  Sup.  Ct.  79,  56  L.  ed.  173;  Interstate  Com.  Comn.  v.  Goodrich  T.  Co. 
(1912)  224  U.  S.  194,  32  Sup.  Ct.  436,  56  L.  ed.  729.  Compare  Brinkmeier 
V.  Missouri  P.  Ry.  Co.  (1912)  224  U.  S.  268,  32  Sup.  Ct.  412,  56  L.  ed.  758; 
Baltimore  &  O.  R.  Co.  v.  Interstate  Com.  Comn.  (1911)  221  U.  S.  612,  31 
Sup.  Ct.  621,  55  L,  ed.  878;  cases  in  note  40,  supra;  article  on  Power  of 
Congress  to  Require  Cars  Moving  Intrastate  Freight  on  a  Railroad  En- 
gaged in  Interstate  Traffic  to  be  Equipped  with  Safety  Appliances,  71  Cent. 
L.  J.  423. 


CHAPTER  II. 
THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

INTRODUCTORY. 

26.  Distribution  among  three  departments  of  government. 

27.  Federal  and  state  problems  distinct  but  similar. 

28.  Exceptions  to  broad  general  rules. 

29.  Distribution  of  powers  not  complete. 

30.  Local  self-government. 

EXTENT  OF  POWER  OF  LEGISLATURE. 

31.  General  extent  of  power. 

32.  Power  to  establish  rates. 

33.  Power  to  change  common  law. 

34.  Position  of  court  on  rate-making. 

35.  Power  to  enact  detailed  regulations. 

36.  Some  powers  may  be  entrusted  by  legislature  to  other  departments. 

37.  LIMITED  POWER  OF  ADMINISTRATIVE  ORGANS. 

DELEGATION  OF  POWER  BY  LEGISLATURE. 

38.  General  principles. 

39.  Outline  of  position  taken. 

40.  Discussion  of  state  and  federal  authorities  on  rate-making. 

41.  Discussion  of  position  of  Supreme  Court  on  rate-making. 

42.  Decisions  of  Supreme  Court  on  delegation  of  power. 

43.  Ascertainment  of  facts. 

44.  Contingent  legislation — bearing  on  general  principles. 

45.  Contingent  legislation  as  to  rates. 

46.  Grants  of  discretion. 

47.  Possible  differences  in  extent  and  character  of  regulation. 

48.  Do  the  statutes  establish  definite  principles? 

EXTENT  OF  POWER  OF  COURTS. 

49.  General  principles. 

50.  Distinction  between  judicial  and  legislative  power  over  rates. 

51.  Judicial  review  of  administrative  orders  establishing  rates. 

46 


INTRODUCTORY.  47 

INTRODUCTORY. 

Distribution  among  three  departments  of  government. 

26.  The  United  States  and  the  several  states  have  by 
their  respective  constitutions  made  partial  ^  distributions 
of  the  powers  of  those  governments  among  three  depart- 
ments of  government.  In  so  doing  they  have  by  implica- 
tion, and  at  times  by  express  words,  declared  that  an  or- 
gan possessing  the  characteristics  of  one  department  shall 
not  exercise  powers  which  have  been  entnisted  only  to 
another  department.^  It  is  this  restraint  which  we  shall 
consider  in  the  present  chapter. 

Federal  and  state  problems  distinct  but  similar. 

27.  Obviously,  the  distributive  clauses  of  the  Federal 
Constitution  relate  only  to  the  federal  government,^  and 

1  See  page  49,  infra. 

2Cooley,  Constitutional  Limitations,  7tli  ed.  126;  Cooley,  Constitutional 
Law,  Sd  ed.,  46;  Black,  Constitutional  Law,  3d  ed.,  p.  82;  Bondy,  The 
Separation  of  Governmental  Powers  (Columbia  University  Studies)  19-22; 
6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1006,  1009;  8  Cyc.  807,  828,  844,  858;  State  v. 
Johnson  (1900)  61  Kan.  803,  60  Pac.  1068,  49  L.  R.  A.  662;  Western  U.  T. 
Co.  V.  Myatt  (1899)  98  Fed.  335;  Shephard  v.  City  of  Wheeling  (1887)  30 
W.  Va.  479,  4  S.  E.  635.  Compare  6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1007;  State 
V.  Bates  (1905)  96  Minn.  110,  116,  104  N.  W.  709,  712;  Sawyer  v.  Dooley 
(1893)  21  Nev.  390,  32  Pac.  437;  and  authorities  cited  in  note  6  infra; 
and  see  Atlantic  E.  Co.  v.  Wilmington  &  W.  R.  Co.  (1892)  111  N.  C.  463, 
16  S.  E.  393,  18  L.  R.  A.  393.  Professor  Dunning,  in  19  Pol.  Sci.  Quar. 
487,  claims  that  Aristotle  did  not  express  the  views  concerning  the  distri- 
bution of  governmental  powers  which  later  writers  have  attributed  to 
him. — The  statement  in  the  text  is  obviously  true  as  to  those  constitutions 
which  contain  express  declarations  to  that  effect.  As  to  those  which  do  not 
contain  such  declarations,  it  is  clear  that  one  department  cannot  exercise 
power  which  has  been  entrusted  only  to  another  department  without  the 
consent  of  the  latter.  And  the  question  whether  even  the  consent  of  the 
latter  can  validate  the  exercise  of  a  power  otherwise  than  as  provided  in 
the  constitution  must  be  answered  by  a  consideration  of  the  purpose  of 
those  who  adopted  the  constitutions  when  they  decided  to  grant  different 
governmental  powers  to  different  organs  of  government. 

3  The   United   States   Supreme   Court   said   in   Satterlee   v.    Matthewson 


48  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

the  distributive  clauses  of  the  state  constitutions  relate 
only  to  the  governments  of  the  respective  states.  Yet 
whether  we  consider  the  power  of  an  organ  of  the  federal 
government  or  the  power  of  an  organ  of  a  state  govern- 
ment the  problems  involved  will  be  the  same,  for  there  is 
a  general  uniformity  among  the  constitutions,  although, 
of  course,  there  are  also  variations  among  the  constitu- 
tions which  may  prevent  uniform  answers  to  those  prob- 
lems, and  even  under  similar  provisions  different  conclu- 
sions may  be  reached  by  the  authorities  of  different  jur- 
isdictions."* 

Exceptions  to  broad  general  rules. 

28.  It  is  true  that  the  actual  distribution  of  powers  is 
not  strictly  logical;  that,  for  instance,  the  president  or 
governor  exercises  power  which  is  legislative  in  its  char- 

(1829)  2  Pet.  380,  413,  7  L.  ed.  458,  "There  is  nothing  in  the  Constitution 
of  the  United  States  which  forbids  the  legislature  of  a  state  to  exercise 
judicial  functions."  See  also  Calder  v.  Bull  (1798)  3  Dall.  38G,  1  L.  ed. 
648;  Randall  v.  Kreiger  (1874)  23  Wall.  137,  147,  23  L.  ed.  124;  Prentis 
V.  Atlantic  C.  L.  Co.  ( 1908)  211  U.  S.  210,  225,  29  Sup.  Ct.  67,  69,  53  L.  ed. 
150;  Consolidated  R.  Co.  v.  Vermont  (1908)  207  U.  S.  541,  552,  28  Sup.  Ct. 
178,  181,  52  L.  ed.  327;  Michigan  C.  R.  Co.  v.  Powers  (1906)  201  U.  S. 
245,  294,  26  Sup.  Ct.  459,  462,  463,  50  L.  ed.  744;  Carfer  v.  Caldwell  (1906) 
200  U.  S.  293,  297,  26  Sup.  Ct.  264,  265,  50  L.  ed.  488;  League  v.  Texas 
(1902)  184  U.  S.  156,  161,  22  Sup.  Ct.  475,  477,  46  L.  ed.  478;  Winchester 
&  S.  R.  Co.  V.  Commonwealth,  (1906)  106  Va.  264,  267,  269,  55  S.  E.  692, 
693,  694,  13  Va.  L.  Reg.  418;  Bondy,  The  Separation  of  Governmental 
Powers  (Columbia  University  Studies)  21;  Mobile,  J.  &  K.  C.  R.  Co.  v. 
Mississippi  (1908)  210  U.  S.  187,  202,  28  Sup.  Ct.  650,  655,  52  L.  ed.  1016; 
Claiborne  Co.  v.  Brooks  (1884)  111  U.  S.  400,  410,  4  Sup.  Ct.  489,  494,  28 
L.  ed.  470;  Welch  v.  Swasey  (1909)  214  U.  S.  91,  104,  29  Sup.  Ct.  667,  570, 
53  L.  ed.  923. 

4  Prentis  v.  Atlantic  C.  L.  Co.  (1908)  211  U.  S.  210,  29  Sup.  Ct.  67,  53 
L.  ed.  150;  Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123, 
135,  136,  83  N.  E.  693,  696,  18  L.  R.  A.  N.  S.  713,  720;  People  v.  Cook 
(1907)  147  Mich.  127,  131,  132,  110  N.  W.  514,  516;  State  v.  Kline  (1907) 
50  Ore.  426,  430,  431,  93  Pac.  237,  239;  Winchester  &  S.  R.  Co.  v.  Com- 
monwealth   (1906)    106  Va.  264,  55  S.  E.  692;   Wheeler's  Appeal    (1877) 


INTRODUCTORY.  49 

acter  when  he  vetoes  legislation,  and  legislative  bodies 
exercise  power  of  a  judicial  nature  when  they  try  cases 
of  impeachment  and  power  of  an  administrative  nature 
when  they  consider  appointments  to  office.^  But  such 
constitutional  exceptions,  and  even  exceptions,  which  ap- 
pear in  some  constitutions,  which  directly  affect  rate  reg- 
ulation, do  not  lessen  the  positiveness  of  the  rule  in  un- 
excepted  cases. 

Distribution  of  powers  not  complete. 

29.  It  is,  however,  important  that  we  notice  that  the 
distribution  of  powers  is  not  complete,  so  that  while  some 
powers  may  be  exercised  only  by  the  legislature,  others 
only  by  an  administrative  organ,  and  still  others  only  by 
the  courts,  there  are  also  powers  which  are  not  definitely 
assigned  by  the  constitutions  and  which  may,  therefore, 

45  Conn.  306;  Martin  v.  Oregon  R.  &  N.  Co.  (1910)  58  Ore.  198,  113  Pae. 
16;  McGehee,  Due  Process  of  Law,  71;  Goodnow,  The  Principles  of  the 
Administrative  Law  of  the  United  States,  33,  95;  and  see  remarks  of 
Christiancy,  J.,  in  People  v.  Hurlburt   (1874)   24  Mich.  44,  63. 

5  On  the  power  of  a  legislature  to  appoint  its  o^vn  subordinate  officers 
and  to  conduct  investigations — which  are  not  acts  of  a  legislative  nature, 
and  on  the  power  of  a  court  to  appoint  its  own  subordinate  officers  and  to 
exercise  analogous  powers — which  are  not  acts  of  a  judicial  nature,  see 
discussion  in  Board  of  Comrs.  v.  Gwin  (1894)  136  Ind.  562,  36  N.  E.  237, 
22  L.  R.  A.  402;  Board  of  Comrs.  v.  Stout  (1893)  136  Ind.  53,  35  N.  E. 
683,  22  L.  R.  A.  398;  Goodnow,  The  Principles  of  the  Administrative  Law 
of  the  United  States,  37,  41,  446-448;  Bondy,  The  Separation  of  Govern- 
mental Powers  (Columbia  University  Studies)  34,  70,  76,  84,  114,  115, 
122,  138;  Black,  Constitutional  Law,  3d  ed.,  p.  85  et  seq. ;  In  re  Janitor 
of  Supreme  Court  (1874)  35  Wis.  410;  In  re  Chapman  (1897)  166  U.  S. 
661,  17  Sup.  Ct.  677,  41  L.  ed.  1154;  State  v.  Pierre   (1908)    121  La.  465, 

46  So.  574.  And  see  6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1007;  21  Harv.  L.  Rev. 
161;  Board  of  Comrs.  v.  McGregor  (1909)  171  Ind.  634,  87  N.  E.  1.  Com- 
pare the  authorities  cited  in  note  25,  infra.  The  actual  decision  in  Kilbourn 
V.  Thompson  (1880)  103  U.  S.  168,  26  L.  ed.  377,  was  simply  that  the  fed- 
eral House  of  Representatives  did  not  have  authority  to  make  the  par- 
ticular investigation  there  considered. 


50  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

be  exercised  by  the  legislature  itself  or  be  assigned  by  it 
to  one  of  the  other  departments.^ 

Local  self-government. 

30.  Moreover,  the  legislature  may  grant  some  self-gov- 
ernment to  the  localities.'^    In  so  doing  it  is  not  reassign- 

6  See  Cooley,  Constitutional  Law,  Sd  ed.,  45,  46 ;  Bendy,  The  Separation 
of  Governmental  Powers  (Columbia  University  Studies)  79,  80;  Stevens, 
Sources  of  the  Constitution  of  the  United  States,  49;  Sabre  v.  Rutland  R. 
Co.  (1913)  Vt.,  85  Atl.  693;  Oregon  R.  &  N.  Co.  v.  Campbell  (1909)  173 
Fed.  958;  Toncray  v.  Budge  (1908)  14  Idaho,  621,  95  Pac.  26;  Incorpor- 
ated Village  of  Fairview  v.  Giffee  (1905)  73  Ohio  St.  183,  76  N.  E.  865; 
State  V.  Struble  (1905)  19  S.  D.  646,  104  N.  W.  465;  State  v.  Bates  (1905) 
96  Minn.  110,  104  N.  W.  709;  Paul  v.  Gloucester  County  (1888)  50  N.  J. 
L.  585,  611,  15  Atl.  272,  284,  1  L.  R.  A.  86;  Brown  v.  Turner  (1874)  70 
N.  C.  93,  102;  6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1007;  Ross  v.  Whitman 
(1856)  6  Cal.  361;  Opinion  of  the  Justices  (1885)  138  Mass.  601; 
sec.  30,  infra;  note  79,  infra;  and  also  Carroll  v.  Wright  (1908)  131 
Ga.  728,  740,  63  S.  E.  260,  265;  21  Harv.  L.  Rev.  139.  And  there  are 
powers  which  other  organs  may  exercise  until  forbidden  by  the  legislature: 
see,  e.  g.,  8  A.  &  E.  Enc.  of  L.,  2d  ed.,  29,  30;    compare  note  25,  infra. 

T  Cooley,  Constitutional  Limitations,  7th  ed.,  165,  172,  263,  264;  8  Cyc. 
837;  Dec.  Dig.,  Const.  L.,  sec.  63;  6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1027,  1024; 
28  id.,  160;  Dillon,  Municipal  Corporations,  5th  ed.,  sec.  573;  Goodnow, 
The  Principles  of  the  Administrative  Law  of  the  United  States,  37;  and 
see  Oberholtzer,  The  Referendum  in  America,  324,  332,  334;  Sutherland, 
Statutory  Construction,  2d  ed.,  p.  170;  State  v.  Donovan  (1913)  Wash., 
130  Pac.  356;  Lee  Wilson  &  Co.  v.  W.  R.  Crompton  B.  &  M.  Co.  (1912) 
102  Ark.,  146  S.  W.  110;  State  v.  Sanders  (1912)  130  La.  272,  57  So. 
924;  State  ex  rel.  Hunt  v.  Tausick  (1911)  64  Wash.  69,  116  Pac.  651, 
35  L.  R.  A.  N.  S.  802;  Plinkiewisch  v.  Portland  Ry.,  L.  &  P.  Co.  (1911) 
58  Ore.  499,  115  Pac.  151;  In  re  Pfahler  (1906)  150  Cal.  71,  88  Pac.  270, 
11  L.  R.  A.  N.  S.  1092.  Compare  Ex  parte  Farnsworth  (1911)  61  Tex.  Cr. 
342,  135  S.  W.  535;  Elliott  v.  City  of  Detroit  (1899)  121  Mich.  611,  84 
N.  W.  820;  Bradshaw  v.  Lankford  (1891)  73  Md.  428,  21  Atl.  66,  11  L.  R. 
A.  582;  Slinger  v.  Henneman  (1875)  38  Wis.  504;  Fournier  v.  Commis- 
sioners of  Aroostook  County  (1912)  109  Me.  48,  82  Atl.  545;  Cotteral  v. 
Barker  (1912)  34  Okla.  533,  126  Pac.  211;  Burton  v.  Dupree  (1898)  19 
Tex.  Civ.  App.  275,  46  S.  W.  272;  In  re  Municipal  Suffrage  to  Women 
(1894)  160  Mass.  586,  36  N.  E.  488,  23  L.  R.  A.  113;  but  with  the  cases 
last  cited  see  Commonwealth  v.  Kingsbury  (1908)  199  Mass.  542,  85  N.  E. 
848;  Graham  v.  Roberts  (1908)  200  Mass.  152,  85  N.  E.  1009.  Congress 
may  grant  local,  but  only  local,  powers  to  the  territories:    see  Stouten- 


INTRODUCTORY.  51 

ing  power  which  has  been  entrusted  exclusively  tO'  itself, 
for  such  limited  power  has  been  constantly  granted  to  lo- 
cal authorities  from  time  immemorial,  and  the  general 
language  of  the  constitutions  is  interpreted  in  accord- 
ance with  this  custom,  since  contemporary  history  does 
not  furnish  any  reason  for  thinking  that  those  who  adopt- 
ed the  constitutions  intended  to  abolish  the  custom.  And, 
of  course,  the  fact  that  a  constitution  assigns  a  given 
power  to  one  organ  of  the  central  government  does  not 
of  itself  oblige  the  legislature  when  it  bestows  a  similar 
power  over  strictly  local  matters  upon  an  organ  of  local 
government  to  bestow  it  upon  a  similar  organ.^ 

burgh  V.  Hennick  (1889)  129  U.  S.  141,  9  Sup.  Ct.  256,  32  L.  ed.  637;  and 
also  McCornick  v.  Western  U.  T.  Co.  (1897)  79  Fed.  449,  451,  38  L.  R.  A. 
684;  Ansley  v.  Ainsworth  (1902)  4  Ind.  Ter.  308,  69  S.  W.  884.  It  seems 
that  there  would  be  less  "refinement  of  reasoning"  (see  In  re  Rahrer 
(1891)  140  U.  S.  545,  562,  11  Sup.  Ct.  865,  869,  35  L.  ed.  572)  in  sus- 
taining local  option  and  similar  laws  upon  the  ground  given  in  the  text 
than  in  sustaining  them  upon  the  ground  which  is  usually  given:  Paul  v. 
Gloucester  County  (1888)  50  N.  J.  L.  585,  594,  600,  603,  604,  15  Atl.  272, 
276,  279,  280,  1  L.  R.  A,  86;  and  see  Oberholtzer,  The  Referendum  in 
America,  208-217,  324;  Cooley,  Constitutional  Limitations,  7th  ed.,  168, 
169.  Compare  Field  v.  Clark  (1892)  143  U.  S.  649,  694,  12  Sup.  Ct. 
495,  505,  36  L.  ed.  294;  Sutherland,  Statutory  Construction,  2d  ed.,  p.  173; 
Oberholtzer,  op.  cit.,  324,  328;  Bryan  v.  Voss  (1911)  143  Ky.  422,  136  S. 
W.  884;  United  States  v.  Richards  (1910)  35  D.  C.  App.  540;  McDonald 
V.  Denton  (1910)  Tex.  Civ.  App.,  132  S.  W.  823;  Evers  v.  Hudson  (1907) 
36  Mont.  135,  148,  92  Pac.  462,  466,  467;  Fonts  v.  Hood  River  (1905)  46 
Ore.  492,  81  Pac.  370,  1  L.  R.  A.  N.  S.  483;  McGonnell's  License  (1904) 
209  Pa.  327,  58  AtL  615;  Locke's  Appeal  (1873)  72  Pa.  St.  491,  508;  cases 
in  note  95,  infra.  On  the  other  hand,  it  is  submitted  that  delegations  of 
power  to  state  boards  cannot  properly  be  based  upon  this  exception  to  the 
general  rule,  however  defensible  they  may  sometimes  be  upon  another 
ground.  Consider  Brodbine  v.  Revere  (1903)  182  Mass.  598,  66  N.  E. 
607;  People  v.  Harper  (1878)  91  111.  357,  370;  Pierce  v.  Doolittle  (1906) 
130  Iowa,  333,  336,  106  N.  W.  751,  752,  6  L.  R.  A.  N.  S.  143,  145;  Tilley 
v.  Savannah,  F.  &  W.  R.  Co.  (1881)  5  Fed.  641,  657;  United  States  v. 
Grimaud  (1911)  220  U.  S.  506,  516,  31  Sup.  Ct.  480,  482,  483,  55  L.  ed. 
563;  19  Harv.  L.  Rev.  203;  20  Harv.  L.  Rev.  147.— On  the  rule  as  to  local 
self-government  see  also  discussion  in  section  44,  infra. 

8  People  V.  Provines   (1868)   34  Cal.  520,  532;   State  v.  City  of  Mankato 


52  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

EXTENT  OF  POWER  OF  LEGISLATURE. 

General  extent  of  power. 

31.  xVt  the  time  of  the  American  Eevolution  the  British 
Parliament  had  absolute  power  over  the  persons  and  po- 
litical institutions  under  British  control,  subject  only  to  a 
veto-power.^    By  the  Revolution  the  state  legislatures^^ 

(1912)  117  Minn.  458,  136  N.  W.  264,  41  L.  R.  A.  N.  S.  Ill;  State  v.  Ure 
(1912)  91  Neb.  31,  135  N.  W.  224;  Eckerson  v.  City  of  Des  Moines  (1908) 
137  Iowa,  452,  465,  115  N.  W.  177,  182;  Staude  v.  Board  of  Election  Comrs. 
(1882)  61  Cal.  313,  322.  See  also  State  ex  rel.  Wilkinson  v.  Lane  (1913) 
Ala.,  62  So.  31;  Commonwealth  v.  Collier  (1905)  213  Pa.  138,  62  Atl.  567; 
Muhlenberg  County  v.  Morehead  (1898)  20  Ky.  L.  Rep.  376,  46  S.  W. 
484;  Pennington  v.  Woolfolk  (1880)  79  Ky.  13;  State  v.  Keener  (1908) 
78  Kan.  649,  97  Pac.  860,  19  L.  R.  A.  N.  S.  615;  Terre  Haute  v.  Evans- 
ville  &  T.  H.  R.  Co.  (1897)  149  Ind.  174,  46  N.  E.  77,  37  L.  R.  A,  189; 
Fox  V.  McDonald  (1893)  101  Ala.  51,  69,  13  So.  416,  419,  21  L.  R.  A.  529; 
Bondy,  The  Separation  of  Governmental  Powers  (Columbia  University 
Studies)  179,  183;  Goodnow,  The  Principles  of  the  Administrative  Law  of 
the  United  States,  35-37;  and  cases  there  cited.  Compare  State  v.  Arm- 
strong (1907)  91  Miss.  513,  44  So.  809;  Mayor  v.  Dechert  (1870)  32  Md. 
369;   and  also  Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.    (1908)    191  N,  Y. 

123,  134,  135,  S3  N.  E.  693,  696,  18  L.  R.  A.  N.  S.  713,  719. 

9  See  Blackstone,  Commentaries,  I,  *91,  *160-*162;  The  Case  of  Captain 
Streater  (1653)  5  How.  State  Trials,  365,  386,  387;  Lee  v.  Bude  &  T.  J. 
Ry.  Co.  (1871)  L.  R.  6  C.  P.  576,  582;  Courtney,  The  Working  Constitu- 
tion of  the  United  Kingdom,  4;  Dicey,  The  Law  of  the  Constitution,  7th 
ed.,  58  et  seq. ;  Lowell,  The  Government  of  England,  I,  9;  Hurtado  v.  Cali- 
fornia (1884)  110  U.  S.  516,  531,  4  Sup.  Ct.  Ill,  292,  119,  28  L.  ed.  232; 
Slaughter  House  Cases  (1872)  16  Wall.  36,  65,  21  L.  ed.  394.  That  veto- 
power  has  not  been  exercised  since  1707:  Anson,  The  Law  and  Custom  of 
the  Constitution,  3d  ed.,  I,  301. 

10  "The  governments  of  the  states  possess  all  the  powers  of  the  Parlia- 
ment of  England,  except  such  as  have  been  delegated  to  the  United  States 
or  reserved  by  the  people.  The  reservations  by  the  people  are  shown  in  the 
prohibitions  of  the  constitutions:"  Munn  v.  Illinois    (1876)    94  U.  S.  113, 

124,  24  L.  ed.  77.  "The  legislative  power  is  the  supreme  authority  except 
as  limited  by  the  constitution  of  the  state,  and  the  sovereignty  of  the  peo- 
ple is  exercised  through  their  representatives  in  the  legislature  unless  by 
the  fundamental  law  power  is  elsewhere  reposed:"  McPherson  v.  Blacker 
(1892)  146  U.  S.  1,  25,  13  Sup.  Ct.  3,  7,  36  L.  ed.  869.  "In  a  free  repre- 
sentative government  nothing  is  more  fundamental  than  the  right  of  the 
people  through  their  appointed  servants  to  govern  themselves  in  accord- 
ance with  their  own  will,  except  so  far  as  they  have  restrained  themselves 


EXTENT  OF  POWER  OF  LEGISLATURE.  53 

acquired  similar  power  over  the  persons  and  political  in- 
stitutions of  their  states,  subject  to  gubernatorial  veto, 
although  constitutions  soon  limited  their  powers  and 
placed  some  powers  in  the  hands  of  other  governmental 
organs  beyond  the  reach  of  legislative  exercise  or  con- 
trol. And  while  Congress  can  deal  only  with  subject- 
by  constitutional  limits  specifically  established,  and  that  in  our  peculiar 
dual  form  of  government  nothing  is  more  fundamental  than  the  full  power 
of  the  state  to  order  its  own  affairs  and  govern  its  own  people,  except  so 
far  as  the  Federal  Constitution  expressly  or  by  fair  implication  has  with- 
drawn that  power.  The  power  of  the  people  of  the  states  to  make  and 
alter  their  laws  at  pleasure  is  the  greatest  security  for  liberty  and  justice, 
this  court  has  said:"  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  106,  29 
Sup.  Ct.  14,  22,  53  L.  ed.  97.  See  also  Coffey  v.  County  of  Harlan  (1907) 
204  U.  S.  659,  662,  27  Sup.  Ct.  305,  306,  51  L.  ed.  666;  Dorman  v.  State 
(1859)  34  Ala.  216,  232-234;  Thorpe  v.  Rutland  &  B.  R.  Co.  (1854)  27  Vt. 
140;  Redell  v.  Moores  (1901)  63  Neb.  219,  230,  231,  88  N.  W.  243,  247,  55 
L.  R.  A.  740,  744,  745;  Sutherland,  Statutory  Construction,  2d  ed.,  sec.  81; 
Patterson,  The  United  States  and  the  States  Under  the  Constitution,  2d 
ed.,  p.  2;  Cooley,  Constitutional  Limitations,  7th  ed.,  128,  233,  236,  241; 
6  A.  &  E.  Enc.  of  L.,  2d  ed.,  934;  8  Cyc.  775;  Black,  Constitutional  Law, 
2d  ed.,  pp.  63,  64,  3d  ed.,  p.  72;  Sedgwick,  Construction  of  Statutory  and 
Constitutional  Law,  2d  ed.,  154;  note  126  in  Chap.  4,  infra;  Goodnow,  The 
Principles  of  the  Administrative  Law  of  the  United  States,  40;  7  Harv.  L. 
Rev.  422;  32  Am.  L.  Reg.  N.  S.  1093,  1097;  21  Harv.  L.  Rev.  383;  12  Harv. 
L.  Rev.  469;  9  Mich.  L.  Rev.  108;  Wulf  v.  Kansas  City  (1908)  77  Kan. 
358,  361,  367,  94  Pac.  207,  208,  210;  State  v.  Missouri  P.  Ry.  Co.  (1907) 
76  Kan.  467,  489,  92  Pac.  606,  613;  Ratcliff  v.  Wichita  U.  S.  Co.  (1906) 
74  Kan.  1,  16,  86  Pac.  150,  155,  6  L.  R.  A.  N.  S.  834;  State  v.  Fountain 
(1908)  6  Pennewill  (Del.)  520,  528,  69  Atl.  926,  930;  Harder's  F.  S.  &  V. 
Co.  V.  Chicago  (1908)  235  111.  58,  68,  85  N.  E.  245,  247;  dissenting  opinion 
in  Abbott  v.  Beddingfield  (1899)  125  N.  C.  256,  268,  272,  34  S.  E.  412,  415, 
416;  Century  Digest,  Const.  Law,  II,  B,  Grant  or  limitation  of  power;  Dec. 
Digest,  Const.  Law,  sees.  25,  26,  50;  House  v.  Mayes  (1911)  219  U.  S.  270, 
282,  31  Sup.  Ct.  234,  236,  55  L.  ed.  213;  Halter  v.  Nebraska  (1907)  205 
U.  S.  34,  40,  27  Sup.  Ct.  419,  421,  51  L.  ed.  696;  Northwestern  N.  L.  I.  Co. 

V.  Riggg  (1906)  203  U.  S.  243,  253,  27  Sup.  Ct.  126,  128,  51  L.  ed.  168.  On 
the  effect  of  a  grant  of  power  to  legislate  see  notes  12,  13,  infra.  With  the 
authorities  in  this  note  compare  State  v.  Moores  (1898)  55  Neb.  480,  490, 
76  N.  W.  175,  177,  41  L.  R.  A.  624,  627,  and  authorities  there  cited  (which 
case  was  overruled  in  Redell  v.  Moores,  supra)  ;  32  Am.  L.  Reg.  N.  S.  3, 
784,  971,  1064;   13  Harv.  L.  Rev.  441;  Report  of  Pennsylvania  Bar  Assn., 

VI,  251;  and  the  absolutely  indefensible  position  taken  in  Freund,  Police 
Power,  pp.  132,  133. — The  subject  which  we  are  considering  is  discussed 
more  fully  in  sections  92-104,  infra. 


54  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

matters  entrusted  to  it,^^  except  in  regard  to  the  terri- 
tories,^^ as  to  such  subject-matters  its  general  power  is 
the  same  as  that  of  state  legislatures  over  subject-matters 
not  removed  from  their  control, ^'^  though  it  also  is  under 
express  restrictions  and  some  governmental  powers  have 

11  Hodges  V.  United  States  (1906)  203  U.  S.  1,  16,  27  Sup.  Ct.  6,  8,  51 
L.  ed.  65;  United  States  v.  Harris  (1883)  106  U.  S.  629,  635,  1  Sup.  Ct. 
601,  606,  27  L.  ed.  290:  Kansas  v.  Colorado  (1907)  206  U.  S.  46,  81, 
87,  88,  89,  92,  27  Sup.  Ct.  655,  661,  663,  664,  665,  51  L.  ed.  950;  Keller  v. 
United  States  (1909)  213  U.  S.  138,  29  Sup.  Ct.  470,  53  L.  ed.  737.  See 
also  House  v.  Mayes  (1911)  219  U.  S.  270,  281,  31  Sup.  Ct.  234,  236,  55  L. 
ed.  213;  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  11,  22,  25  Sup.  Ct. 
358,  359,  49  L.  ed.  643.  Compare  The  Lottawanna  (1874)  21  Wall.  558, 
576,  577,  22  L.  ed.  654,  concerning  a  power  which  seems  to  have  been 
granted  simply  by  implication. 

12  El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez  (1909)  215  U.  S.  87,  30  Sup.  Ct. 
21,  54  L.  ed.  106;  National  Bank  v.  County  of  Yankton  (1879)  101  U.  S. 
129,  25  L,  ed.  1046;  Utter  v.  Franklin  (1899)  172  U.  S.  416,  423,  19  Sup. 
Ct.  183,  186,  43  L.  ed.  498;  Mormon  Church  v.  United  States  (1890)  136 
U.  S.  1,  42,  43,  10  Sup.  Ct.  792,  802,  803,  34  L.  ed.  478.  See  also  Okla- 
homa V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (1911)  220  U.  S.  277,  285,  31  Sup. 
Ct.  434,  435,  55  L.  ed.  465;  De  Lima  v.  Bidwell  (1901)  182  U.  S.  1,  196, 
21  Sup.  Ct.  743,  753,  45  L.  ed.  1041;  Shively  v.  Bowlby  (1894)  152  U.  S. 
1,  48,  14  Sup.  Ct.  548,  566,  38  L.  ed.  331;  Patterson,  The  United  States  and 
the  States  Under  the  Constitution,  2d  ed.,  pp.  8,  9. 

13  United  States  v.  Chandler-Dunbar  W.  P.  Co.  (1913)  229  U.  S.  53,  62, 
33  Sup.  Ct.  667,  671,  672,  57  L.  ed.  1063;  Lewis  B.  P.  O.  C.  Co.  v.  Briggs 

(1913)  229  U.  S.  82,  89,  33  Sup.  Ct.  679,  681,  57  L.  ed.  1083;  McDermott 
V.  Wisconsin  (1913)  228  U.  S.  115,  128,  33  Sup.  Ct.  431,  433,  57  L.  ed.  754; 
Hoke  V.  United  States  ( 1913 )  227  U.  S.  308,  323,  33  Sup.  Ct.  281,  284,  57  L.  ed. 
523;  Flint  v.  Stone  Tracy  Co.  (1911)  220  U.  S.  107,  153,  154,  31  Sup.  Ct. 
342,  350,  55  L.  ed.  389;  Louisville  &  N.  R.  Co.  v.  Mottley  (1911)  219  U.  S. 
467,  480,  31  Sup.  Ct.  265,  269,  55  L.  ed.  297;  Atlantic  C.  L.  R.  Co.  v.  River- 
side Mills  (1911)  219  U.  S.  186,  202,  31  Sup.  Ct.  164,  169,  55  L.  ed.  167; 
Burton  v.  United  States  (1906)  202  U.  S.  344,  366,  367,  26  Sup.  Ct.  688,  693, 
50  L.  ed.  1057;  Lottery  Case— Champion  v.  Ames  (1903)  188  U.  S.  321,  353, 
23  Sup.  Ct.  321,  325,  47  L.  ed.  492;  Chinese  Exclusion  Case  (1889)  130  U.  S. 
581,  603,  604,  9  Sup.  Ct.  623,  629,  32  L.  ed.   1068;   Juilliard  v.  Greenman 

(1884)  110  U.  S.  421,  447-450,  4  Sup.  Ct.  122,  129-131,  28  L.  ed.  204;  Gib- 
bons v.  Ogden  (1824)  9  Wheat.  1,  196,  197,  6  L.  ed.  23;  Patterson,  The 
United  States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  17;  McMur- 
trie.  Observations  on  Mr.  George  Bancroft's  Plea  for  the  Constitution,  24,  25. 


EXTENT  OF  POWER  OF  LEGISLATUEE.  55 

been  placed  beyond  its  exercise  or  control.  In  other 
words,  the  state  legislatures,  over  subject-matters  not 
withdrawn  from  their  control,  and  Congress,  over  sub- 
ject-matters entrusted  to  it,  have  all  governmental  powers 
not  entrusted  by  the  constitutions  to  other  organs  of  gov- 
ernment and  not  withdrawn  from  the  control  of  those 
legislative  bodies  by  other  provisions  of  the  constitu- 
tions. 

Power  to  establish  rates. 

32.  It  is,  therefore,  clear  that  legislative  bodies  may 
determine  the  principles  upon  which  railroad  charges 
shall  be  based  and  may  themselves  ordain  specific  sched- 
ules of  rates  for  future  transportation,  unless  those  pow- 
ers, or  either  of  them,  have  been  entrusted  exclusively  to 
another  organ  of  government  by  the  constitutional  pro- 
visions which  assign  judicial  powers  to  the  courts  or  by 
those  which  assign  administrative  powers  to  administra- 
tive organs,  or  unless  the  legislatures  are  restrained  by 
other  constitutional  provisions  which  we  need  not  here 
consider. 

The  question  whether  a  legislature  in  making  enact- 
ments of  the  character  referred  to  would  entrench  upon 
the  power  of  an  administrative  organ  has  apparently 
never  arisen,  and  it  is  doubtful  whether  such  a  conten- 
tion will  ever  be  made.  We  must,  however,  consider  the 
question  whether  legislative  enactments  of  that  charac- 
ter would  entrench  upon  the  power  of  the  courts. 

It  is  true  that,  in  the  absence  of  statute,  the  courts 
may,  in  cases  properly  before  them,  determine  the  amount 
which  a  common  carrier  may  charge  for  services  rendered 
by  it.^^    But  there  is  a  clear  distinction  between  applying 

14  stern  v.  Metropolitan  T.  &  T.  Co.  (1897)  46  N.  Y.  Supp.  110,  19  N. 
Y.  App.  Div.  316;  Cook  &  Wheeler  v.  Chicago,  R.  I.  &  P.  Ry.  Co.    (1890) 


56  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

an  existing  rule  of  law  (in  that  ease  the  common  law)  and 
adopting  a  new  and  possibly  different  rule  of  law  for  re- 
lations which  may  exist  in  the  future.  ^^  The  legislature, 
in  regulating  rates,  is  not  deciding  what  the  rights  of 
parties  are  at  the  time  the  schedule  is  enacted.  It  is  not 
interpreting  the  common  law.  It  is  adopting  for  the  fu- 
ture a  rule  which  supersedes  that  law. 

Power  to  change  common  law. 

33.  And  certainly  the  legislature  may  change  the  com- 
mon law.^®    The  only  legal  restrictions  upon  legislative 

81  Iowa,  551,  46  N.  W.  1080,  9  L.  R.  A.  764;  Menacho  v.  Ward  (1886) 
27  Fed.  529.  See  also  Salt  R.  V.  C.  Co.  v.  Nelssen  (1906)  10  Ariz.  9,  85 
Pac.  117,  12  L.  R.  A.  N.  S.  711.  Even  without  such  decisions,  it  would 
seem  to  follow  from  the  fact  that  a  common  carrier  cannot  refuse  to  carry: 
Jackson  v.  Rogers  (1683)  2  Show.  327,  that  it  cannot  escape  this  duty  by 
charging  whatever  it  pleases.  See  also  Allnutt  v.  Inglis  (1810)  12  East, 
527.  In  Abilene  C.  0.  Co.  v.  Texas  &  P.  Ry.  Co.  (1905)  38  Tex.  Civ.  App. 
366,  85  S.  W.  1052,  the  common  law  rule  was  applied  to  interstate  ship- 
ments, but  the  decision  was  reversed,  Texas  &  P.  Ry.  Co.  v.  Abilene  C.  O. 
Co.  (1907)  204  U.  S.  426,  27  Sup.  Ct.  350,  51  L.  ed.  553,  on  the  ground  that 
the  interstate  commerce  act  had  altered  the  method  of  securing  relief  from 
excessive  charges. 

15  See  note  19,  infra. 

16  See  Munn  v.  Illinois  (1876)  94  U.  S.  113,  134,  24  L.  ed.  77;  Texas  & 
P.  Ry.  Co.  V.  Abilene  C.  O.  Co.  (1907)  204  U.  S.  426,  27  Sup.  Ct.  350,  51 
L.  ed.  553;  St.  Louis,  L  M.  &  S.  Ry.  Co.  v.  Taylor  (1908)  210  U.  S.  281, 
294,  295,  28  Sup.  Ct.  616,  621,  52  L.  ed.  1080;  Wilmington  S.  M.  Co.  v. 
Fulton  (1907)  205  U.  S.  60,  74,  27  Sup.  Ct.  412,  417,  51  L.  ed.  708;  West 
V.  Louisiana  (1904)  194  U.  S.  258,  262,  24  Sup.  Ct.  650,  652,  48  L.  ed.  965; 
Barrett  v.  Indiana  (1913)  229  U.  S.  26,  30,  33  Sup.  Ct.  692,  693,  57  L.  ed. 
1050;  Second  Employers'  Liability  Cases — Mondou  v.  New  Y.,  N.  H.  &  H. 
R.  Co.  (1912)  223  U.  S.  1,  50,  32  Sup.  Ct.  169,  175,  56  L.  ed.  327;  Atlantic 
C.  L.  R.  Co.  V.  Riverside  Mills  (1911)  219  U.  S.  186,  31  Sup.  Ct.  164,  55 
L.  ed.  167;  Noble  State  Bank  v.  Haskell  (1911)  219  U.  S.  104,  113,  31 
Sup.  Ct.  186,  188,  55  L.  ed.  112;  Western  U.  T.  Co.  v.  Commercial  M.  Co. 
(1910)  218  U.  S.  406,  417,  31  Sup.  Ct.  59,  62,  54  L.  ed.  1088;  Grenada  L. 
Co.  V.  Mississippi  (1910)  217  U.  S.  433,  441,  30  Sup.  Ct.  535,  539,  54  L. 
ed.  826;  Slaughter  House  Cases  (1872)  16  Wall.  36,  65,  66,  21  L.  ed,  394 
(which  fully  answers  dissenting  opinion  in  that  case)  ;  Dilworth  v.  Schuyl- 
kill I.  L.  Co.   (1908)   219  Pa.  527,  530,  69  Atl.  47,  48;  Ivy  v.  Western  U. 


EXTENT  OF  POWER  OF  LEGISLATURE.  57 

action  are  those  imposed  by  the  constitutions.  If  a  prin- 
ciple of  the  common  law  has  been  inserted  in  the  consti- 
tutions it  is  binding  upon  the  legislatures  not  as  a  prin- 
ciple of  the  common  law  but  as  a  provision  of  the  consti- 
tutions.    And  the  fact  that  courts  enforce  compliance 

T.  Co.  (1908)  165  Fed.  371,  376;  Sutherland  v.  Governor  (1874)  29  Mich. 
320,  325,  326;  Blackstone,  Commentaries,  I,  *89;  6  A.  &  E.  Enc.  of  L.,  2d 
ed.,  1034,  1035;  notes  9  and  10,  supra;  and  also  Pound,  Common  Law  and 
Legislation,  21  Harv.  L.  Rev.  383;  The  Lottawanna  (1874)  21  Wall.  558, 
577.  Compare  note  165  in  Chapter  4,  infra,  and  the  unsound  position 
taken  in  Pope,  Municipal  Contracts  and  Rate  Regulation,  16  Harv.  L.  Rev. 
1,  20,  21 ;  Fenwick,  Charter  Contracts  and  the  Regulation  of  Rates,  9  Mich. 
L.  Rev.  225,  227.  In  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S. 
362,  397,  14  Sup.  Ct.  1047,  1054,  38  L.  ed.  1014,  the  court,  after  saying 
correctly,  "It  is  doubtless  true,  as  a  general  proposition,  that  the  formation 
of  a  tariff  of  charges  for  the  transportation  by  a  common  carrier  of  persons 
or  property  is  a  legislative  or  administrative  rather  than  a  judicial  func- 
tion," goes  on  to  say,  "Yet  it  has  always  been  recognized  that,  if  a  carrier 
attempted  to  charge  a  shipper  an  unreasonable  sum,  the  courts  had  juris- 
diction to  inquire  into  that  matter  and  to  award  to  the  shipper  any  amount 
exacted  from  him  in  excess  of  a  reasonable  rate;  and  also  in  a  reverse  case 
to  render  judgment  in  favor  of  the  carrier  for  the  amount  found  to  be  a 
reasonable  charge.  The  province  of  the  courts  is  not  changed,  nor  the 
limits  of  judicial  inquiry  altered,  because  the  legislature  instead  of  the 
carrier  prescribes  tlie  rates."  This  reference  to  the  common  law  as  fur- 
nishing a  ground  for  judicial  inquiry  into  the  propriety  of  rates  named  by 
a  governmental  authority  is  clearly  inappropriate.  The  reason  given  for 
the  decision  in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S. 
418,  10  Sup.  Ct.  462,  702,  33  L.  ed.  970,  is  likewise  unsound.  And  the 
same  comment  may  be  made  on  statements  in  Ex  parte  Young  (1908)  209 
U.  S.  123,  147,  148,  166,  28  Sup.  Ct.  441,  448,  449,  456,  52  L.  ed.  714,  13 
L.  R.  A.  N.  S.  932,  942,  950;  Missouri  P.  Ry,  Co.  v.  Tucker  (1913)  230 
U.  S.  340,  33  Sup.  Ct.  961,  57  L.  ed.  1507.  As  showing  the  unsoundness  of 
these  reasons  see  Noyes,  American  Railroad  Rates,  212,  note,  250;  Smalley, 
Railroad  Rate  Control  (Publications  of  the  American  Economic  Assn.) 
48,  49,  50,  25;  Steenerson  v.  Great  N.  Ry.  Co.  (1897)  69  Minn.  353,  375, 
72  N.  W.  713,  716;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U. 
S.  739,  754,  19  Sup.  Ct.  804,  810,  43  L.  ed.  1154;  Texas  &  P.  Ry.  Co.  v. 
Abilene  C.  0.  Co.  (1907)  204  U.  S.  426,  26  Sup.  Ct.  351,  51  L.  ed.  553; 
Thompson,  Private  Corporations,  1st  ed.,  p.  4231,  note;  authorities  cited 
in  notes  17,  18,  19,  infra;  sees.  49,  50,  51,  infra;  note  165  in  Chapter  4, 
infra.  Compare  Pope,  Municipal  Contracts  and  Rate  Regulation,  16  Harv. 
L.  Rev.  1,  20,  21;  Fenwick,  Charter  Contracts  and  the  Regulation  of  Rates, 
9  Mich.  L.  Rev.  225,  227. 


58  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

with  some  constitutional  provisions  certainly  does  not 
show  that  rate  regulation  is  judicial  in  its  nature.^"^ 

Position  of  court  on  rate-making. 

34.  Indeed,  the  court  itself  has  said  expressly  that 
"the  function  of  rate-making  is  purely  legislative  in  its 
character,  and  this  is  true,  whether  it  is  exercised  directly 
by  the  legislature  itself  or  by  some  subordinate  or  ad- 
ministrative body,  to  whom  the  power  of  fixing  rates  in 
detail  has  been  delegated.  The  completed  act  derives  its 
authority  from  the  legislature  and  must  be  regarded  as  an 
exercise  of  the  legislative  power."  ^^  ''A  judicial  in- 
quiry investigates,  declares  and  enforces  liabilities  as 
they  stand  on  present  or  past  facts  and  under  laws  sup- 
posed already  to  exist.     That  is  its  purpose  and  end. 

17  The  court  of  last  resort  said  in  Monongahela  N.  Co.  v.  United  States 
(1893)  148  U.  S.  312,  327,  13  Sup.  Ct.  622,  626,  37  L.  ed.  463,  that  the 
amount  of  compensation  to  which  the  owner  of  property  taken  by  the  fed- 
eral government  is  entitled  is,  in  view  of  the  just  compensation  provision 
of  the  Fifth  Amendment,  strictly  a  judicial  question.  It  is  submitted  that 
this  statement  is  incorrect  (see  Bauman  v.  Ross  (1897)  167  U.  S.  548,  593, 
17  Sup.  Ct.  966,  983,  42  L.  ed.  270,  and  cases  there  cited,  which  are  in 
direct  opposition  to  the  statement  of  tlie  court  in  the  Monongahela  N.  Co. 
case)  and  that  in  any  event  the  statement  is  inapplicable  to  rate  regu- 
lation. Conceding  that  if  the  owner  be  not  given  what  the  court  considers 
just  compensation  the  court  may  declare  the  taking  unconstitutional,  it 
certainly  does  not  follow  that  the  court  may  fix  the  amount  of  compen- 
sation in  the  first  instance  or  may  apply  any  but  constitutional  tests  to 
the  amount  fixed.  Indeed,  the  court  also  said  in  the  same  opinion  that 
the  decision  of  Congress  is  not  conclusive,  although  without  recognizing 
that  this  position  is  far  different  from  the  one  already  referred  to.  And 
even  if  the  court  had  actually  decided  the  case  in  accordance  Avith  its 
extremest  language,  we  should  still  liave  many  earlier  and  later  declara- 
tions by  the  same  court  that  the  prescribing  of  future  rates  is  a  legislative 
or  administrative  act.  See,  e.  g.,  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tomp- 
kins (1900)  176  U.  S.  167,  173,  20  Sup.  Ct.  336,  338,  44  L.  ed.  417,  and 
notes  18,  19,  47,  61  and  62,  infra. 

iSKnoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  8,  29  Sup.  Ct.  148, 
150,  53  L.  ed.  371. 


EXTENT  OF  POWER  OF  LEGISLATURE.  59 

Legislation  on  the  other  hand  looks  to  the  future  and 
changes  existing  conditions  by  making  a  new  rule  to  be 
applied  thereafter  to  all  or  some  part  of  those  subject  to 
its  power.  The  establishment  of  a  rate  is  the  making  of  a 
rule  for  the  future,  and  therefore  is  an  act  legislative  and 
not  judicial  in  kind. ' '  ^^ 

Power  to  enact  detailed  regulations. 

35.  Moreover,  it  must  be  noted  that  the  constitutional 
provisions  now  under  consideration  do  not  oblige  the  leg- 
islature to  state  merely  general  principles  and  leave  to 
the  courts  the  statement  of  the  application  of  those  prin- 
ciples to  particular  circumstances  which  may  exist  there- 
after. The  legislature  may  do  so,  unquestionably,  but  it 
is  not  obliged  to  do  so.  The  power  of  legislative  bodies 
to  enact  detailed  legislation,  unless  expressly  forbidden 
by  other  provisions  of  the  constitutions,  is  too  well  recog- 

i9Prentis  v.  Atlantic  C.  L.  Co.  (1908)  211  U.  S.  210,  226,  29  Sup.  Ct. 
67,  69,  53  L.  ed.  150.  See  also  Ross  v.  Oregon  (1913)  227  U.  S.  150,  163, 
33  Sup.  Ct.  220,  223,  57  L.  ed.  458;  Interstate  Com.  Comn.  v.  Chicago,  R. 
L  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  110,  30  Sup.  Ct.  651,  659,  54  L.  ed. 
946;  Home  Tel.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  271,  278,  29  Sup. 
Ct.  50,  51,  54,  53  L.  ed.  176;  Honolulu  R.  T.  &  L.  Co.  v.  Hawaii  (1908)  211 
U.  S.  282,  29  Sup.  Ct.  55,  53  L.  ed.  186;  San  Diego  L.  &  T.  Co.  v.  Jasper 
(1903)  189  U.  S.  439,  440,  23  Sup.  Ct.  571,  47  L.  ed.  892;  McChord  v. 
Louisville  &  N.  R.  Co.  (1902)  183  U.  S.  483,  495,  22  Sup.  Ct.  165,  169,  46 
L.  ed.  289;  Interstate  Com.  Comn.  v.  Alabama  M.  Ry.  Co.  (1897)  168  U. 
S.  144,  162,  18  Sup.  Ct.  45,  47,  42  L.  ed.  414;  Interstate  Com,  Comn.  v. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (1897)  167  U.  S.  479,  499,  500,  501,  505, 
606,  511,  17  Sup.  Ct.  896,  900,  901,  902,  903,  905,  42  L.  ed.  243;  authorities 
at  end  of  note  16,  supra;  notes  62,  63,  infra;  sees.  51,  60,  infra;  State  v. 
Johnson  (1900)  61  Kan.  803,  60  Pac.  1068,  49  L.  R.  A.  662;  Western  U. 
T.  Co.  V.  Myatt  (1899)  98  Fed.  335;  Gulf  C.  Co.  v.  Harris,  Cortner  &  Co. 
(1908)  158  Ala.  343,  48  So.  477,  24  L.  R.  A.  N.  S.  399;  Shephard  v.  City 
of  Wheeling  (1887)  30  W.  Va.  479,  4  S.  E.  635.  Cases  sustaining  legisla- 
tive regulation  are  cited  in  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp. 
Comn.  (1907)  206  U.  S.  1,  19,  27  Sup.  Ct.  585,  591,  51  L.  ed.  933.  Com- 
pare People  ex  rel.  Central  P.,  N.  &  E.  R.  Co.  v.  Willcox  ( 1909)  194  N.  Y. 
383,  87  N.  E.  517. 


60  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

nized  to  be  open  to  dispute.^*^  If  the  legislature  does  not 
attempt  to  determine  whether  the  conduct  of  individuals 
complies  with  regulations  which  it  has  laid  down,  it  does 
not  infringe  upon  any  power  which  is  bestowed  exclu- 
sively upon  the  courts  by  the  constitutional  provisions 
which  grant  to  them  judicial  power. 

Some  powers  may  be  entrusted  by  legislature  to  other  de- 
partments. 

36.  In  addition  to  the  regulative  power  which  may  be 
exercised  only  by  the  legislature^^  (except  in  so  far  as  that 
bodj^  authorizes  local  self-government )2^  the  legislature 
possesses  powers  which  other  organs  of  government  may 
exercise  but  may  not  exercise  exclusively:  thus  there  are 
many  administrative  regulations  which  it  may  enact  itself 
or  the  making  of  which  it  may  entrust  to  administrative 
organs,-^  and  it  may,  within  limits  which  we  need  not 
here  consider,  make  regulations  concerning  the  internal 
organization  and  methods  of  operation  of  both  adminis- 

20  Central  L.  Co.  v.  South  Dakota  (1912)  226  U.  S.  157,  160,  33  Sup.  Ct. 
66,  67,  57  L.  ed.  164;  Flint  v.  Stone  Tracy  Co.  (1911)  220  U.  S.  107,  158, 
173,  31  Sup.  Ct.  342,  352,  358,  55  L.  ed.  389;  United  States  v.  Delaware  & 
H.  Co.  (1909)  213  U.  S.  366,  417,  29  Sup.  Ct.  527,  539,  53  L.  ed.  836; 
Magoun  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283,  294,  18  Sup.  Ct. 
594,  599,  42  L.  ed.  1037;  Maynard  v.  Hill  (1888)  125  U.  S.  190,  8  Sup.  Ct. 
723,  31  L.  ed.  654;  Watkins  v.  Lessee  of  Holman  (1842)  16  Pet.  25,  10  L. 
ed.  873;  Lessee  of  Livingston  v.  Moore  (1833)  7  Pet.  469,  8  L.  ed.  751; 
Black,  Constitutional  Law,  3d  ed.,  p.  369;  Goodnow,  The  Principles  of  the 
Administrative  Law  of  the  United  States,  28,  40,  331,  332;  State  v.  Wolf 
(1907)  145  N.  C.  440,  59  S.  E.  40;  Wheeler's  Appeal  (1877)  45  Conn.  306, 
319;  Southern  I.  Ry.  Co.  v.  Railroad  Comn.  (1909)  172  Ind.  113,  127,  87 
N.  E.  966,  971. 

21  See  note  29,  infra. 

22  See  note  7,  supra. 

23  See  note  6,  supra,  and  the  discussion  of  delegation  of  power,  infra. 


EXTENT  OF  POWER  OF  LEGISLATURE.  61 

trative  ^^  and  judicial  ^^  organs,  or  it  may  entrust  that 
power  to  the  organs  concerned.^ ^ 

24  See  Gtoodnow,  The  Principles  of  the  Administrative  Law  of  the  United 
States,  123,  125. 

25  Brown  on  Jurisdiction,  sec.  14;  Wigmore  on  Evidence,  sees.  7,  1353, 
1354;  Bondy,  The  Separation  of  Governmental  Powers  (Columbia  Univer- 
sity Studies)  31,  100;  In  re  Saddler  (1913)  Okla.,  130  Pac.  906;  Gary  v. 
Mine  &  S.  S.  Co.  ( 1912 )  53  Colo.  556,  129  Pac.  230 ;  Banks  v.  State  ( 1905 )  124 
Ga.  15,  52  S.  E.  74,  2  L.  R.  A.  N.  S.  1007;  State  v,  Barrett  (1905)  138  N. 
C.  630,  50  S.  E.  506,  1  L.  R.  A.  N.  S.  626;  In  the  Matter  of  the  Estate 
of  Stilwell  (1893)  139  N.  Y.  337,  34  N.  E.  777;  Whiting  v.  Townsend 
(1881)  57  Cal.  515;  Cooper's  Case  (1860)  22  N.  Y.  67,  90;  note  5,  supra. 
See  also  Hoopes  v.  Bradshaw  (1911)  231  Pa.  485,  80  Atl.  1098;  State 
V.  Potello  (1911)  40  Utah,  119  Pac.  1023;  State  v.  Converse  (1911) 
40  Uiah,  119  Pac.  1030;  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed  (1910) 
219  U.  S.  35,  43,  31  Sup.  Ct.  136,  138,  55  L.  ed.  78;  Bailey  v.  State 
(1909)  161  Ala.  75,  48  So.  498;  Board  of  Comrs.  v.  McGregor  (1909)  171 
Ind.  634,  87  N.  E.  1;  State  v.  Pierre  (1908)  121  La.  465,  46  So.  574;  Lew 
v.  Bray  (1908)  81  Conn.  213,  70  Atl.  628;  Sprintz  v.  Saxton  (1908)  125 
N.  Y.  App.  Div.  908,  110  N.  Y.  Supp.  585;  Memphis  St.  Ry.  Co.  v.  Byrne 
(1907)  119  Tenn.  278,  320,  321,  104  S.  W.  460,  470;  People  v.  Hayne 
(1890)  83  Cal.  Ill,  23  Pac.  1,  7  L.  R.  A.  348;  Brady  v.  Carteret  R.  Co. 
(1907)  70  N.  J.  E.  748,  67  Atl.  606,  8  L.  R.  A.  N.  S.  866.  Compare  In  re 
Day  (1899)  181  111.  73,  54  N.  E.  646,  50  L.  R.  A.  519;  Herndon  v.  Im- 
perial F.  I.  Co.  (1892)  111  N.  C.  384,  16  S.  E.  465,  18  L.  R.  A. 
547;  State  v.  Noble  (1889)  118  Ind.  350,  21  N.  E.  244,  4  L.  R.  A.  101; 
Houston  V.  Williams  (1859)  13  Cal.  24;  Calvert  v.  Carstarphen  (1903) 
133  N.  C.  25,  45  S.  E.  353;  Ex  parte  Griffiths  (1889)  118  Ind.  83,  20  N. 
E.  513,  3  L.  R.  A.  398;  Bondy,  op.  cit.,  168;  and  also  In  re  Janitor  of 
Supreme  Court  (1874)   35  Wis.  410. 

26Wayman  v.  Southard  (1825)  10  Wheat.  1,  42,  43,  46,  6  L.  ed.  253; 
Bank  of  the  U.  S.  v.  Halstead  (1825)  10  Wheat.  51,  61,  6  L.  ed.  264;  Hud- 
son V.  Parker  (1895)  156  U.  S.  277,  15  Sup.  Ct.  450,  39  L.  ed.  424;  Cooke 
V.  Avery  (1893)  147  U.  S.  375,  13  Sup.  Ct.  340,  37  L.  ed.  209;  Morton  v. 
Pusey  (1908)  237  111.  26,  86  N.  E.  601;  People  v.  Ahearn  (1908)  193  N. 
Y.  441,  86  N.  E.  474;  Smith  v.  State  Board  of  Medical  Examiners  (1908) 
140  Iowa,  66,  69,  72,  73,  117  N.  W.  1116,  1117,  1118;  Stevens  v.  Truman 
(1899)  127  Cal.  155,  59  Pac.  397;  White  v.  Toledo,  St.  L.  &  K.  C.  R.  Co. 
(1897)  79  Fed.  133;  Winston  v.  Stone  (1897)  102  Ky.  423,  43  S.  W.  397; 
State  V.  Adams  Ex.  Co.  (1896)  66  Minn.  271,  68  N.  W.  1085,  38  L.  R.  A. 
225;  Anderson  v.  Levely  (1882)  58  Md.  192;  Thompson  v.  Floyd  (1855) 
2  Jones'  L.  (N.  C.)  313.  See  also  State  v.  Struble  (1905)  19  S.  D.  646, 
104  N.  W.  465;  Atlantic  E.  Co.  v.  Wilmington  &  W.  R.  Co.  (1892)  111 
N.  C.  463,  16  S.  E.  393,  18  L.  R.  A.  393;  Hildreth  v.  Crawford  (1884)  65 
Iowa,  339,  343;  Coleman  v.  Newby  (1871)  7  Kan.  82;  8  Cyc.  835;  note 
G,  supra. 


62  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

LIMITED  POWER  OF  ADMINISTRATIVE  ORGANS. 

37.  Administrative  organs  possess  only  the  powers 
which  have  been  entrusted  to  them  by  a  constitution  or 
by  legislation.^^  Passing  over  clear  grants  of  power  by 
the  constitutions  with  the  remark  that  they  may  confer 
upon  organs  which  are  granted  administrative  power 
more  than  merely  administrative  power,  and  that  in  such 
cases  decisions  concerning  merely  administrative  bodies 
may  be  inapplicable  to  such  organs,  and,  conversely,  de- 
cisions concerning  them  may  be  inapplicable  to  merely 
administrative  organs,  we  shall  inquire  simply  what  por- 
tion of  the  power  which  may  be  exercised  by  the  legisla- 
ture may  be  granted  by  the  legislature  to  administrative 
bodies  without  infringing  the  distribution  of  powers 
which  is  usually  made  by  the  constitutions. 

DELEGATION  OF  POWER  BY  LEGISLATURE. 

General  principles. 

38.  The  courts  have  frequently  determined  that,  except 
with  reference  to  local  affairs,^  ^  a  legislature  may  not 

27  See  Interstate  Com.  Comn.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (1897) 
167  U.  S.  479,  17  Sup.  Ct.  896,  42  L.  ed.  243;  Interstate  Com.  Comn.  v. 
Alabama  M.  Ry.  Co.  (1897)  168  U.  S.  144,  18  Sup.  Ct.  45,  42  L.  ed.  414; 
United  States  v.  George  (1913)  228  U.  S.  14,  22,  33  Sup.  Ct.  412,  415,  57 
L.  ed.  712;  Southern  P.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S. 
433,  444,  31  Sup.  Ct.  288,  291,  55  L.  ed.  283;  Siler  v.  Louisville  &  N.  R. 
Co.  (1909)  213  U.  S.  175,  29  Sup.  Ct.  451,  53  L.  ed.  753;  State  ex  rel. 
Ellis  V.  Atlantic  C.  L.  R.  Co.  (1906)  51  Fla.  578,  40  So.  875;  Board  of  R. 
Comrs.  V.  Oregon  Ry.  &  Nav.  Co.  (1888)  17  Ore.  65,  19  Pac.  702,  2  L.  R.  A. 
195;  United  States  v.  Eaton  (1892)  144  U.  S.  677,  12  Sup.  Ct.  764,  36  L. 
ed.  591;  Morrill  v.  Jones  (1883)  106  U.  S.  466,  1  Sup.  Ct.  423,  27  L.  ed. 
267;  23  A.  &  E.  Enc.  of  L.,  2d  ed.,  653;  Goodnow,  The  Principles  of  the 
Administrative  Law  of  the  United  States,  46,  47,  95;  People  v.  Healy 
(1907)  231  111.  629,  83  N.  E.  453;  Cumberland  T.  &  T.  Co.  v.  Memphis 
(1912)    200  Fed.  657. 

28  On  the  power  of  the  legislature  to  allow  localities  to  govern  them- 
selves in  some  respects,  see  note  7,  supra.     That  administrative  and  judi- 


DELEGATION  OF  POWER  BY  LEGISLATURE.  63 

delegate  its  power  of  deciding  questions  of  public  pol- 
icy,^^  and  under  this  rule  the  provision  of  an  act  by  which 

cial  organs  may  be  allowed  to  make  regulations  concerning  their  own 
internal  organization  and  methods  of  operation  (see  note  7,  supra)  hardly 
seems  to  he  an  exception  to  the  general  rule. 

29  In  the  following  cases  among  others  it  has  been  actually  decided  that 
power  which  is  strictly  legislative  may  not  be  delegated  and  there  are 
dicta  to  that  effect  in  many  other  cases:  Central  of  Ga.  Ry.  Co.  v.  Rail- 
road Comn.  (1908)  161  Fed.  925,  985  (where  the  statute  dealt  with  rate- 
making  by  commission)  ;  State  v.  Great  N.  Ry.  Co.  (1907)  100  Minn.  445, 
111  N.  W.  289,  10  L.  R.  A.  N.  S.  250;  Brenke  v.  Borough  of  Belle  Plaine 
(1908)  105  Minn.  84,  117  N.  W.  157;  Vallelly  v.  Board  of  Park  Comrs. 
(1907)  16  N.  D.  25,  111  N.  W.  615,  15  L.  R.  A.  N.  S.  61;  United  States 
V.  Matthews  (1906)  146  Fed.  306;  People  v.  Board  of  Election  Comrs. 
(1906)  221  111.  9,  77  N.  E.  321;  Rose  v.  State  (1906)  Ala.,  40  So.  951; 
Fite  V.  State  (1905)  114  Tenn.  646,  88  S.  W.  941,  1  L.  R.  A.  N.  S.  520; 
State  V.  Budge  (1905)  14  N.  D.  532,  105  N.  W.  724;  King  v.  Concordia 
F.  I.  Co.  (1905)  140  Mich.  258,  103  N.  W.  616;  Phoenix  I.  Co.  v.  Perkins 
(1905)  19  S.  D.  59,  101  N.  W.  1110;  State  v.  Rogers  (1905)  71  Ohio  St. 
203,  73  N.  E.  461;  Mitchell  v.  State  (1902)  134  Ala.  392,  32  So.  687; 
Gilhooly  v.  City  of  Elizabeth  (1901)  66  N.  J.  L.  484,  49  Atl.  1106;  Noel  v. 
People  (1900)  187  111.  587,  58  N.  E.  616,  52  L.  R.  A.  287;  Johnston  C. 
Assn.  V.  Parker  (1899)  45  N.  Y.  App.  Div.  55,  60  N.  Y.  Supp.  1015;  In- 
habitants of  Township  of  Bernards  v.  Allen  (1898)  61  N.  J.  L.  228,  39  Atl. 
716;  In  re  Incorporation  of  North  Milwaukee  (1896)  93  Wis.  616,  67  N. 
W.  1033,  33  L.  R.  A.  645;  Dowling  v.  Lancashire  I.  Co.  (1896)  92  Wis. 
63,  65  N.  W.  738,  31  L.  R.  A.  112;  Hovey  v.  Commissioners  of  Wyandotte 
Co.  (1896)  56  Kan.  577,  44  Pac.  17;  Anderson  v.  Manchester  F.  A.  Co. 
(1895)  59  Minn.  182,  191,  63  N.  W.  241,  28  L.  R.  A.  609,  610;  O'Neil  v. 
American  F.  L  Co.  (1895)  166  Pa.  72,  30  Atl.  943,  26  L.  R.  A.  715;  State 
V.  Gaster  (1893)  45  La.  An.  636,  12  So.  739;  Board  of  Harbor  Comrs.  v. 
Excelsior  R.  Co.  (1891)  88  Cal.  491,  26  Pac.  375;  King  v.  Tennessee  (1889) 
87  Tenn.  304,  10  S.  W.  509,  3  L.  R.  A.  210;  Ex  parte  Cox  (1883)  63  Cal. 
21;  Pilkey  v.  Gleason  (1856)  1  Iowa,  522;  Barto  v.  Himrod  (1853)  8  N. 
Y.  483;  State  v.  Field  (1853)  17  Mo.  529.  See  also  St.  Louis  M.  B.  T.  Ry. 
Co.  V.  United  States  (1911)  188  Fed.  191;  Village  of  Little  Chute  v.  Van 
Camp  (1908)  136  Wis.  526,  117  N.  W.  1012;  Commonwealth  v.  Addams 
(1894)  95  Ky.  588,  26  S.  W.  581;  State  v.  Gaunt  (1885)  13  Ore.  115,  9 
Pac.  55;  Kehler  &  Bro.  v.  Jack  M.  Co.  (1876)  55  Ga.  639;  and  end  of  note 
2,  supra.  But,  of  course,  the  fact  that  Locke  (On  Civil  Government,  sec. 
142)  declared  broadly  that  a  legislature  may  not  transfer  the  power  of 
making  laws,  while  it  may  cast  some  light  upon  the  intentions  of  those 
who  long  afterwards  adopted  the  American  constitutions,  does  not  except 
for  that  purpose  have  any  value  whatever.  Concerning  Locke's  book  see 
also  Stephen,  Horae  Sabbaticae,  II,  155,  156. 


64  THE  DISTKIBUTION  OF  GOVERNMENTAL  POWERS. 

a  state  legislature  sought  to  empower  a  railroad  commis- 
sion to  regulate  rates  has  been  declared  unconstitu- 
tional.^'' In  this  chapter  the  validity  of  the  rule  will  be 
assumed.^  ^ 

30  Central  of  Ga.  Ry.  Co.  v.  Pailroad  Comn.  of  Alabama  (1908)  161  Fed. 
925,  985.  The  provision  was  that  "in  all  cases  where  any  classification  of 
railroads  or  of  any  articles  of  freight  or  any  maximum  rates  or  charges 
for  the  transportation  of  passengers  or  freight  over  any  railroad  in  this 
state,  have  been,  or  may  hereafter  be  prescribed  by  statute,  or  any  pre- 
vailing rates  or  charges  for  such  transportation  have  been,  or  may  here- 
after be,  by  statute  made  the  maximum  rates  or  charges,  the  Railroad 
Commission  of  Alabama  shall  have  the  power  and  is  hereby  authorized 
to  change  such  classifications  and  such  rates  or  charges,  or  any  of  them, 
from  time  to  time  as  conditions  may,  in  its  judgment  render  expedient  or 
proper  so  to  do,  whether  the  effect  of  such  changes  be  to  increase  or  reduce 
any  of  the  rates  or  charges,  and  to  establish  and  order  to  be  put  in  force 
in  lieu  thereof  any  new  classification  or  rate  or  charge  which  it  may  deem 
reasonable  and  proper;  and  the  classifications,  rates  or  charges  so  estab- 
lished by  it  shall  be  the  lawful  classifications,  rates  or  charges  until  further 
changed  by  said  Railroad  Commission." 

31  The  rule  can  be  based  only  upon  the  purpose  of  those  who,  in  adopting 
the  constitutions,  distributed  governmental  powers.  This  purpose  the 
courts  have  usually  sought  by  reading  the  distributive  clauses  not  in  the 
light  of  political  theories  predominant  when  the  constitutions  were  adopted 
but  in  the  light  of  the  common  law  principle  that  an  agent  may  not  dele- 
gate his  powers,  although  the  state  legislatures,  and  apparently  Congress, 
resemble  Parliament  more  closely  than  they  resemble  mere  agents.  And, 
since  the  legislature  may  delegate  some  of  its  powers:  see  notes  6,  26,  supra, 
and  33,  65,  82,  et  seq.,  infra,  the  common  law  does  not  furnish  a  complete 
interpretation  of  the  provisions. — The  men  who  adopted  the  various  con- 
stitutions were  influenced  by  a  theory  which  was  based  upon  an  apprecia- 
tive generalization  of  governmental  conditions  which,  as  some  of  those  who 
adopted  the  constitutions  realized,  did  not  fully  accord  with  that  generali- 
zation; and  in  many  of  the  constitutions  it  is  not  clear  how  closely  those 
who  adopted  them  intended  that  theory  to  be  followed  in  interpreting  gen- 
eral provisions.  See  The  Federalist,  No.  47,  et  seq.;  Stevens,  Sources  of 
the  Constitution  of  the  United  States,  41,  42,  47,  48,  49,  57,  154,  155,  177. 
With  the  exception  of  Marr  v.  Enloe  (1830)  1  Yerg.  (Tenn.)  452,  where 
that  was  one  of  the  grounds  of  the  decision,  there  seems  to  have  been  no 
case  before  1847  in  which  legislation  was  actually  declared  unconstitutional 
upon  the  ground  that  legislative  power  was  delegated.  And  since  then  the 
courts  as  a  general  rule  certainly  have  not  followed  any  theory  consist- 
ently and  intelligently.  To  an  amazing  extent  the  decisions  are  either 
based  upon  fictions  or  based  upon  cases  which  do  not  apply  or  the  opin- 


DELEGATION  OF  POWER  BY  LEGISLATURE.  65 

On  the  other  hand,  although  rate  regulation  may  in- 
volve questions  of  public  policy, ^^  there  are  decisions 
that  at  least  some  specific  rates  named  by  commission  are 
valid.^^ 

ions  do  not  notice  distinctions  which  are  admitted  by  all  who  consider  such 
distinctions.  In  spite  of  frequent  declarations  by  the  courts  that  legis- 
lative power  may  not  be  delegated,  such  opinions  and  decisions  cast  some 
doubt  upon  the  propriety  of  their  ever  declaring  legislation  unconstitu- 
tional upon  the  ground  that  a  constitution  impliedly  forbids  a  delegation 
of  legislative  power:  see  21  Harv.  L.  Rev.  206;  Thayer,  Life  of  Marshall, 
chap.  5.  Yet  if  it  is  clear  that  the  legislature  may  not  delegate  a  power 
which  another  organ  attempts  to  exercise,  the  courts  have  a  stronger  reason 
for  declaring  that  exercise  unconstitutional  than  they  ordinarily  have  for 
declaring  the  action  of  another  department  of  government  invalid,  for  the 
right  of  the  courts  to  decide  whether  legislation  has  been  passed  by  the 
body  prescribed  by  the  constitution  is  clearer  than  their  right  to  decide 
whether  legislation  passed  in  the  proper  manner  is  constitutional:  see  lan- 
guage of  Gibson,  J.,  dissenting,  in  Eakin  v.  Raub  (1825)  12  S.  &  R.  (Pa.) 
330,  349,  354.— The  court  said  in  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888) 
35  Fed.  866,  874,  1  L.  R.  A.  744,  750,  "After  all,  the  question  is  one  more 
of  form  than  of  substance.  The  vital  question  with  both  shipper  and  car- 
rier is  that  the  rates  shall  be  just  and  reasonable,  and  not  by  what  body 
they  shall  be  put  in  force."  To  just  as  great  an  extent  the  question  whether 
the  President  may  order  the  punishment  of  a  counterfeiter  without  trial 
is  one  "more  of  form  than  of  substance."  And  so  is  the  question  whether 
in  a  common  law  suit  in  a  federal  court  where  the  value  in  controversy 
exceeds  twenty  dollars  the  defendant  may  be  denied  a  trial  by  jury.  But 
the  men  who  adopted  some  of  our  constitutions,  at  least,  considered  the 
forms  of  government  important:  see  note  12  in  Chapter  4,  infra. 

32  See  sees.  47,  48,  infra. 

33  State  ex  rel.  Webster  v.  Superior  Court  (1912)  67  Wash.  37,  120  Pac. 
861;  Louisville  &  N.  R.  Co.  v.  Interstate  Com.  Comn.  (1910)  184  Fed.  118; 
State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (1888)  38  Minn.  281,  37  N.  W.  782; 
Georgia  R.  &  B.  Co.  v.  Smith  (1883)  70  Ga.  694;  Tilley  v.  Savannah,  F. 
&  W.  R.  Co.  (1881)  5  Fed.  641;  McWhorter  v.  Pensacola  &  A.  R.  Co. 
(1888)  24  Fla.  417,  5  So.  129,  2  L.  R.  A.  504;  Storrs  v.  Pensacola  &  A.  R. 
Co.  (1892)  29  Fla.  617,  11  So.  226;  and  see  Chicago,  I.  &  L.  Ry.  Co.  v. 
Railroad  Comn.  (1911)  175  Ind.  630,  644,  645,  95  N.  E.  364,  369;  Trustees 
V.  Saratoga  G.,  E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123,  83  N.  E.  693,  18  L. 
R.  A.  N.  S.  713;  Stone  v.  Yazoo  &  M.  V.  R.  Co.  (1885)  62  Miss.  607,  645, 
21  A.  &  E.  R.  Cas.  17;  People  v.  Harper  (1878)  91  111.  357;  Southern  Ry. 
Co.  V.  Hunt  (1908)  42  Ind.  App.  90,  83  N.  E.  721;  Chicago,  I.  &  L.  Ry.  Co. 
V.  Railroad  Comn.  (1906)  38  Ind.  App.  439,  450,  451,  78  N.  E.  338,  342, 
79  N.  E.  520.     It  must  be  noted  that  in  Tallassee  F.  M.  Co.  v.  Commis- 


66  TIIE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

Outline  of  position  taken. 

39.  Calling  attention  to  these  two  lines  of  cases,  it  is 
submitted  that  the  legislature  is  the  only  governmental 
body  which  may  determine  the  principles  upon  which 
rates  shall  be  regulated,  and  that  while  the  legislature, 

sioners'  Court  (1908)  158  Ala.  263,  48  So.  354,  the  power  was  granted  to 
a  local  body,  as  to  which  see  sec.  30,  supra.  We  must  distinguish  from 
the  above  cases  the  cases  in  which  other  courts  have  sustained  other  statutes 
which  declared  that  the  determinations  of  the  commissions  should  con- 
stitute prima  facie  evidence  of  what  were  the  lawful  rates:  Oregon  R. 
&  N.  Co.  V.  Campbell  (1909)  173  Fed.  958;  Chicago,  B.  &  Q.  R.  Co.  v. 
Jones  (1894)  149  111.  361,  37  N.  E.  247,  24  L.  R.  A.  141;  Chicago  &  N. 
W.  Ry.  Co.  V.  Dey  (1888)  35  Fed.  866,  1  L.  R.  A.  744;  Tift  v.  Southern 
Ry.  Co.  (1905)  138  Fed.  753,  aflirmed,  Southern  Ry.  Co.  v.  Tift  (1907)  206 
U.  S.  428,  27  Sup.  Ct.  709,  51  L.  ed.  1124;  State  v.  Minneapolis  &  St.  L. 
R.  Co.  (1900)  80  Minn.  191,  83  N.  W.  60;  Burlington,  C.  R.  &  N.  Ry.  Co. 
V.  Dey  (1891)  82  Iowa,  312,  48  N.  W.  98,  12  L.  R.  A.  436;  State  v.  Free- 
mont,  E.  &  M.  V.  R.  Co.  (1888)  23  Neb.  117,  36  N.  W.  305  (1887)  22  Neb. 
313,  35  N.  W.  118,  32  A.  &  E.  R.  Cas.  426.  The  question  of  delegation  of 
power  was  discussed  only  in  the  Illinois  case,  the  cases  in  173  Fed.  and 
35  Fed.,  and  in  State  v.  Missouri  P.  Ry.  Co.  (1907)  76  Kan.  467,  92  Pac. 
606;  Atlantic  E.  Co.  v.  Wilmington  &  W.  R.  Co.  (1892)  111  N.  C.  463,  16 
S.  E.  393,  18  L.  R.  A.  393,  in  the  last  two  of  which  the  remarks  were 
dicta.  (See  also  Corporation  Comn.  v.  Seaboard  A.  L.  System  (1900)  127 
N.  C.  283,  288,  37  S.  E.  266,  268).  In  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.  V,  Railroad  Comn.  (1908)  136  Wis.  146,  116  N.  W.  905,  17  L.  R.  A.  N. 
S.  821,  the  court  sustained  a  statute  which  empowered  the  commission  to 
determine  what  were  reasonable  rates.  The  point  at  issue  in  the  case  did 
not  involve  rates,  although  the  court  discussed  that  question.  The  order 
of  the  commission  was  prima  facie  evidence  (136  Wis.  at  158,  116  N.  W. 
at  909,  17  L.  R.  A.  N.  S.  at  828)  but  the  court  could  not  inquire  whether 
the  rate,  regulation  or  service  fixed  by  the  commission  were  just  and  rea- 
sonable but  only  whether  the  order  of  the  commission  were  unreasonable 
(136  Wis.  at  165,  116  N.  W.  at  912,  17  L.  R.  A.  N.  S.  at  831).— Portland 
fe  0.  C.  R.  Co.  V.  Grand  T.  Ry.  Co.  (1858)  46  Me.  69;  Vermont  &  M.  R.  Co. 
v.  Fitchburg  R.  Co.  (1852)  63  Mass.  (9  Cush.)  369,  were  far  diflferent 
from  the  above:  in  each  case  the  couil,  under  statutory  authority,  ap- 
pointed commissioners  to  determine  the  rates  which  under  existing  law  one 
party  to  the  action  might  charge  the  other  party.  State  statutes  upon 
rate  regulation  by  commission  are  collected  in  Beale  and  Wyman,  Railroad 
Rate  Regulation,  p.  1081  et  seq.  In  Lindsley,  Rate  Regulation  of  Gas  and 
Electric  Lighting,  p.  58  et  seq.,  are  collected  the  statutes  dealing  with  that 
subject. 


DELEGATION   OF   POWER   BY   LEGISLATURE.  67 

when  it  names  specific  rates,  need  not  disclose  ttie  prin- 
ciples upon  which  it  acts  or  even  consciously  adopt  any 
principles,  that  body  may  not  grant  to  any  other  organ  of 
government  any  power  whatever  to  name  specific  rates 
for  future  transportation  without  first  laying  down  prin- 
ciples sufficient  for  the  guidance  of  that  organ,  although 
after  the  legislature  has  determined  the  principles  upon 
which  rates  shall  be  regulated  it  may  grant  to  an  adminis- 
trative organ  power  to  name  rates  in  accordance  with 
those  principles,  the  power  of  that  organ  depending  upon 
the  completeness  with  which  principles  have  been  laid 
down  for  its  guidance. ^^ 

Discussion  of  state  and  federal  authorities  on  rate-mak- 
ing. 

40.  Some  of  the  courts  in  sustaining  laws  which  au- 
thorized commissions  to  name  rates  for  future  transporta- 
tion have  said  that,  as  economic  conditions  change  from 
time  to  time,  rates  can  be  named  better  by  a  commission 

34  So  also  it  seems  that  a  legislature  cannot  constitutionally  grant  to  a 
commission  power  to  permit  or  refuse  to  permit  combinations  between  com- 
peting carriers  without  first  laying  down  principles  for  the  guidance  of 
the  commission.  It  is  obvious  to  any  one  who  examines  the  question  dis- 
passionately that  some  combinations  between  competing  carriers  are  de- 
cidedly in  the  interest  of  the  public,  that  some  are  not  injurious,  while  still 
others  may  prove  to  be  against  the  public  interest.  These  combinations 
admit  of  classification,  and  it  is  the  duty  of  the  legislature,  when  regu- 
lating them  or  when  providing  for  their  regulation,  to  declare  the  lines  of 
division  or  the  principles  by  which  those  lines  may  be  clearly  ascertained. — 
A  statute  of  Minnesota  which  attempted  to  delegate  to  a  commission  an 
unrestrained  veto  power  over  proposed  increases  in  the  capitalization  of 
railroads  incorporated  in  that  state  was  declared  unconstitutional  in  State 
V.  Great  N.  Ry.  Co.  (1907)  100  Minn.  445,  111  N.  W.  289,  10  L.  R.  A.  N. 
S.  250.  See  also  State  ex  rel.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v. 
Railroad  Comn.  (1908)  137  Wis.  80,  86,  117  N.  W.  846,  848.  Compare 
State  V.  Kenosha  E.  Ry.  Co.  (1911)  145  Wis.  337,  129  N.  W.  600;  Schaake 
V.  Dolley  (1911)  85  Kan.  598,  118  Pac.  80,  37  L.  R.  A.  N.  S.  877;  State 
V.  Corvallis  &  E.  R.  Co.   (1911)   59  Ore.  450,  117  Pac.  980. 


68  THE  DISTRIBUTION  OF  GO\^RNMENTAL  POWERS. 

than  by  the  legislature,  which  is  not  constantly  in  ses- 
sion.^^  This  argument  from  convenience  is  certainly  a 
strong  one;  and  decisions  that  railroad  commissions  may 
name  specific  rates  do  not  necessarily  conflict  with  the 
decisions  that  the  legislature  alone  may  determine  the 
principles  upon  which  the  government  shall  be  con- 
ducted. 

In  declaring  that  a  state  might  empower  a  commission 
to  regulate  charges  for  gas  and  electric  service,  a  court 
has  said  that  conditions  in  the  several  localities  differed 
so  greatly  that  the  legislature  could  not  justly  establish 
uniform  rates  for  the  entire  state  and  that  it  would  not  be 
practicable  for  the  legislature  itself  to  establish  rates  in 
each  of  the  communities.^^  And  the  same  position  might 
properly  be  taken  with  regard  to  charges  for  transporta- 
tion. In  both  cases  it  is  true  that  the  legislature  cannot 
satisfactorily  do  more  than  declare  the  principles  which 
the  commission  shall  apply ;  although  in  neither  case  does 

35  state  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (1888)  38  Minn.  281,  37  N.  W. 
782;  Georgia  R.  &  B.  Co.  v.  Smith  (1883)  70  Ga.  694;  Tilley  v.  Savannah, 
F.  &  W.  R.  Co.  (1881)  5  Fed.  641.  See  also  Louisville  &  N.  R.  Co.  v.  In- 
terstate Com.  Comn.  (1910)  184  Fed.  118;  McWhorter  v.  Pensacola  &  A. 
R.  Co.  (1888)  24  Fla.  417,  5  So.  129,  2  L.  R.  A.  504;  Chicago  &  N.  W.  Ry. 
Co.  v.  Dey  (1888)  35  Fed.  866,  1  L.  R,  A.  744;  Trustees  v.  Saratoga  G., 
E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123,  144,  S3  N.  E.  693,  699,  18  L.  R.  A. 
N.  S.  713,  723;  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn. 
(1908)  136  Wis.  146,  159,  116  N.  W.  905,  910,  17  L.  R.  A.  N.  S.  821,  829; 
State  v.  Atlantic  C.  L.  R.  Co.  (1908)  56  Fla.  617,  47  So.  969,  32  L.  R.  A. 
N.  S.  639.  Compare  Smalley,  Railroad  Rate  Control  (Publications  of  the 
American  Economic  Assn.)    121. 

30 Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123,  83  N.  E. 
693,  18  L.  R.  A.  N.  S.  713.  And  see  Louisville  &  N.  R.  Co.  v.  Interstate 
Com.  Comn.  (1910)  184  Fed.  118;  State  v.  Chicago,  M.  &  St.  P.  Ry.  Co. 
(1888)  38  Minn.  281,  37  N.  W.  782;  Georgia  R.  &  B.  Co.  v.  Smith  (1883) 
70  6a.  694.  For  other  practical  arguments  in  support  of  the  delegation  of 
power  to  administrative  organs,  see  Young,  The  Relation  of  the  Executive 
to  the  Legislative  Power,  Proc.  Am.  Pol.  Sci.  Assn.,  I,  47. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  69 

it  follow  that  the  commission  may  be  allowed  to  decide 
what  those  guiding  principles  shall  be. 

Some  of  the  courts  have  also  sustained  statutes  which 
authorized  commissions  to  name  rates  upon  the  gTound 
that  in  those  statutes  the  legislature  had  declared  what 
the  law  should  be  and  had  left  to  the  commissions  ques- 
tions of  fact.^^     Certainly  where  definite  standards  are 

37  See  Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123,  145, 
83  N.  E.  693,  700,  18  L.  R.  A.  K  S.  713,  723,  where  the  commission  was  em- 
powered to  determine  what  were  reasonable  maximum  rates;  Minneapolis, 
St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn.  (1908)  136  Wis.  146,  116  N. 
W.  905,  17  L.  R.  A.  N.  S.  821,  referred  to  more  fully  in  note  33,  supra, 
where  the  commission  was  empowered  to  determine  what  were  reasonable 
rates;  State  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (1888)  38  Minn.  281,  300,  302, 
37  N.  W.  782,  787,  788,  where  the  statute  provided  that  the  charges  should 
be  equal  and  reasonable;  and  State  ex  rel.  Webster  v.  Superior  Court 
(1912)  67  Wash.  37,  120  Pac.  861,  where  the  statute  (Laws,  1911,  p.  571) 
provided  that  the  commission  should  determine  the  just,  reasonable  or 
sufficient  rates.  In  view  of  the  illustrations  used,  the  court  apparently 
had  this  thought  in  mind  in  Tilley  v.  Savannah,  F.  &  W.  R.  Co.  (1881)  5 
Fed.  641,  657,  where  the  statute  provided  that  if  a  railroad  should  charge 
more  than  a  fair  and  reasonable  rate  it  should  be  deemed  guilty  of  extor- 
tion, and  that  a  commission  should  name  reasonable  and  just  rates;  and 
in  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed.  866,  874,  where  the 
statute  provided  that  if  any  railroad  "shall  charge  .  .  .  more  than  a 
fair  and  reasonable  rate  ...  or  shall  make  any  unjust  or  unreasonable 
charge  .  .  .  the  same  shall  be  deemed  guilty  of  extortion,"  and  required 
a  commission  to  make  a  schedule  of  reasonable  and  maximum  rates,  such 
schedule  to  be  prima  facie  evidence  that  the  rates  named  therein  were  rea- 
sonable and  just  maximum  rates.  In  reference  to  the  illustration  in  the 
case  last  cited  we  may  remark  in  passing  that  in  declaring  that  a  carrier 
should  be  allowed  to  earn  three  per  cent,  for  every  act  of  transportation 
the  legislature  would  be  fixing  an  unpractical  standard;  and  we  may 
question  whether  in  declaring  that  the  company  should  earn  that  percent- 
age from  its  business  as  a  whole  the  legislature  would  be  furnishing  ade- 
quate guidance  for  the  regulation  of  the  separate  rates.  In  Georgia  R.  & 
B.  Co.  V.  Smith  (1883)  70  Ga.  694  (1888)  128  U.  S.  174,  9  Sup.  Ct. 
47,  32  L.  ed.  377,  the  statute  provided  that  a  railroad  charging  more  than 
a  fair  and  reasonable  rate  should  be  deemed  gailty  of  extortion,  and  pro- 
vided for  the  appointment  of  commissioners  who  should  make  schedules  of 
just  and  reasonable  rates.  The  state  court  decided,  to  use  the  language  of 
the  United  States  Supreme  Court,  "that  it  was  expected,  not  that  the  leg- 
islature would  itself  make  specific  regulations  as  to  what  should  in  each 


70  THE  DISTRIBUTIOK  OF  GOVERNMENTAL  POWERS. 

established  by  statute  a  grant  of  power  to  ascertain  and 
state  what  rates  will  conform  to  those  standards  does  not 
violate  the  rule  that  legislative  power  may  not  be  dele- 
gated. This  principle  cannot  be  disputed.  The  only 
question  is  whether  the  statutes  have  in  reality  left  to 
the  commissions  merely  the  determination  of  matters  of 
fact.  To  this  question,  however,  the  courts  have  as  a  gen- 
eral rule  ^^  given  but  very  little  consideration. 

On  the  other  hand,  the  suggestion  which  has  been  made 
in  support  of  commission-made  rates  ^^  that  because  the 
legislature  may  for  historical  reasons  grant  some  self- 
government  to  localities  ^'^  it  may  delegate  legislative 
power  to  other  governmental  organs  is  entirely  uncon- 
vincing. The  fact  that  there  is  one  exception  to  the  rule 
does  not  justify  the  creation  of  new  exceptions.     And 

case  be  a  proper  charge,  but  that  it  would  simply  provide  the  means  by 
which  such  rates  should  be  ascertained  and  enforced."  In  Chicago,  I.  &  L. 
Ry.  Co.  V.  Railroad  Comn.  (1906)  38  Ind.  App.  439,  451,  78  N.  E.  338,  342, 
79  N.  E.  520;  Southern  Ry.  Co.  v.  Hunt  (1908)  42  Ind.  App.  90,  100,  83 
N.  E.  721,  725,  where  the  commission  was  directed,  upon  complaint,  to  de- 
termine whether  the  rat€S  charged  were  just  and  reasonable,  and,  if  not, 
to  fix  just  and  reasonable  rates,  the  court  spoke  of  the  decisions  of  the 
commission  as  to  whether  a  railroad's  charges  were  just  and  reasonable  as 
determinations  of  questions  of  fact.  In  the  Indiana  cases,  however,  the 
court  was  not  discussing  the  question  of  delegation  of  legislative  power. 
See  also  cases  cited  in  note  33,  supra,  concerning  statutes  by  which  the 
rates  named  by  commissions  furnished  prima  facie  evidence  as  to  what 
were  the  lawful  rates. — Compare,  however,  Central  of  Ga.  Ry.  Co.  v.  Rail- 
road Comn.  of  Alabama  (1908)  161  Fed.  925,  985,  where  the  court  de- 
clared invalid  as  an  attempted  delegation  of  legislative  power  a  provision 
in  an  act  of  Alabama  quoted  in  note  30,  supra. 

38  See,  however.  Central  of  Ga.  Ry.  Co.  v.  Railroad  Comn.  of  Alabama, 
cited  in  note  30,  supra. 

30  See  Tilley  v.  Savannah,  F.  &  W.  R.  Co.  (1881)  5  Fed.  641;  and  also 
United  States  v.  Grimaud  (1911)  220  U.  S.  506,  516,  31  Sup.  Ct.  480,  482, 
483,  55  L.  ed.  563  (1910)  216  U.  S.  614,  30  Sup.  Ct.  576,  54  L.  ed.  639; 
People  V.  Harper  (1878)  91  111.  357.  The  opinion  in  the  case  last  cited  is 
criticised  in  note  87,  infra. 

40  See  sec.  30,  supra. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  71 

since  the  distributive  clauses  of  the  state  constitutions  do 
not  apply  to  local  governments  ^^  but  do  apply  to  the  cen- 
tral governments  of  those  states,  there  is  obviously  noth- 
ing in  the  argument,  which  was  made  in  support  of  rate 
regulation  by  a  gas  and  electricity  commission,^-  that  be- 
cause a  power  may  be  granted  to  administrative  officers 
of  a  locality  similar  power  may  be  granted  to  adminis- 
trative officers  of  the  state. 

Two  opinions  also  refer  to  laws  declaring  that  the  ju- 
diciarj^  may  make  rules  of  court."*'^  But  allowing  an 
organ  to  regulate  procedure  before  itself  is  far  different 
from  allowing  an  organ  to  make  rules  of  substantive  law. 
And  the  contention  that  authorizing  a  commission  to 
name  rates  is  similar  to  allowing  the  companies  concerned 
to  name  their  own  rates  ^^  is  likewise  unsound.    A  com- 

41  See  sec.  30,  supra. 

42  Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.  (1908)  191  N.  Y.  123,  83  K  E. 
693,  18  L.  R.  A.  N.  S.  713. 

43  State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (1888)  38  Minn.  281,  37  N.  W. 
782;  Georgia  R.  &  B.  Co.  v.  Smith  (1883)   70  Ga.  694. 

44Tilley  v.  Savannah,  F.  &  W.  R.  Co.  (1881)  5  Fed.  641,  656;  Mc- 
Whorter  v.  Pensacola  &  A.  R.  Co.  (1888)  24  Fla.  417,  5  So.  129,  2  L.  R.  A. 
504. — On  the  converse  of  this  proposition  see  Morrow  v.  Wipf  (1908)  22 
S.  D.  146,  159,  115  N.  W.  1121,  1127;  People  v.  Board  of  Election  Comra. 
(1906)  221  111.  9,  19,  77  N.  E.  321,  323,  where  the  courts  also  failed  to 
notice  the  distinction,  which  is  pointed  out  in  the  text,  and  declared  that 
a  legislature  may  not  allow  the  officials  of  a  political  party  to  determine 
the  method  by  which  that  party  shall  nominate  its  candidates.  The  opin- 
ions are  unconvincing.  A  legislature  certainly  does  not  delegate  legislative 
power  when  it  allows  an  organization  to  decide  such  questions  for  itself. 
If  those  decisions  were  sound  a  law  which  provided  that  a  railroad  should 
charge  two  cents  a  mile  for  passenger  transportation  unless  its  appropriate 
officers  should  fix  different  rates,  but  that  such  officers  might  fix  different 
rates,  would  have  to  be  held  unconstitutional  as  delegating  legislative 
power  to  the  railroad  officials.  The  cases  are  parallel. — On  the  other  hand, 
in  State  v.  Felton  (1908)  77  Ohio  St.  554,  577,  84  N.  E.  85,  89,  the  court 
by  a  large  majority  decided  that  a  law  which  authorized  party  officials  to 
prescribe  the  purpose,  time,  manner  and  conditions  of  holding  a  primary 
election  and  the  qualification  of  the  electors  did  not  delegate  legislative 
power.     See  also  note  93,  infra. 


72  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

mission  acts  an  an  organ  of  government— it  interferes 
with  the  conduct  of  third  parties  in  matters  in  which  the 
commission  is  not  itself  interested;  while  the  officials  of 
a  railroad,  although  doing  what  some  governmental  organ 
might  do,  do  not  act  as  agents  of  the  government  but  in- 
terfere with  the  conduct  of  others  onlj^  in  matters  affect- 
ing the  company  itself. 

We  shall  examine  later  the  position  that  an  adminis- 
trative body  may  be  granted  discretion  in  the  establish- 
ment of  rates.^^ 

Discussion  of  position  of  Supreme  Court  on  rate-making. 

41.  While  the  United  States  Supreme  Court  has  sus- 
tained an  order  of  the  Interstate  Commerce  Commission 
which  reduced  railroad  rates,'^^  that  decision  was  ren- 
dered without  any  discussion  of  the  validity  of  the  dele- 
gation of  power  to  the  commission,  and  in  no  other  case 
has  the  court  ever  decided  how  much  power  over  rates 
may  be  granted  by  Congress  to  the  Interstate  Commerce 
Commission.*^ 

45  See  sec.  46,  infra. 

46  Interstate  Com.  Comn.  v.  Chicago,  E.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S. 
88,  30  Sup.  Ct.  651,  54  L.  ed.  946;  Interstate  Com.  Comn.  v.  Chicago,  B.  & 
Q.  R.  Co.  (1910)  218  U.  S.  113,  30  Sup.  Ct.  660,  54  L.  ed.  959.  See  also 
Interstate  Com.  Comn.  v.  Illinois  C.  R.  Co.  (1910)  215  U.  S.  452,  30  Sup. 
Ct.  155,  54  L.  ed.  280,  which  sustained  an  order  of  the  commission  arising 
out  of  discrimination  in  service  without  any  reference  to  the  constitutional 
question;  and  Louisville  &  N.  R.  Co.  v.  Interstate  Com.  Comn.  (1910)  184 
Fed.  118. 

47  There  is  a  dictum  that  "Congress  might  itself  prescribe  the  rates,  or 
it  might. commit  to  some  subordinate  tribunal  this  duty:"  Interstate 
Com.  Comn.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (1897)  167  U.  S.  479,  494, 
17  Sup.  Ct.  896,  898,  42  L.  ed.  243.  See  also  Texas  &  P.  Ry.  Co.  v.  Inter- 
state Com.  Comn.  (1896)  162  U.  S.  197,  216,  16  Sup.  Ct.  666,  674,  40  L.  ed. 
940;  dissenting  opinion  in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota 
(1890)  134  U.  S.  418,  464,  10  Sup.  Ct.  462,  702,  704,  33  L.  ed.  970;  and 
notes  61,  62,  infra.     But  this  dictum  does  little,  if  anything,  towards  set- 


DELEGATION  OF  POWER  BY   LEGISLATURE.  73 

The  question  whether  the  distribution  of  powers  by  the 
state  constitutions  has  been  violated  by  any  administra- 
tive order  concerning  rates  has  been  before  that  court  only 
in  the  Railroad  Commission  Cases,^^  where  the  state 
co-urt  had  already  declared  that  the  law  there  considered 
did  not  violate  the  state  constitution  ^^  — a  decision  which 
was  binding  upon  all  other  courts.^*^  The  United  States 
Supreme  Court  did  briefly  announce  its  concurrence  with 
the  interpretation  which  the  state  court  had  placed  upon 
the  state  constitution.^^     But  the   attention  of  all  the 

tling  the  point  now  under  discussion.  And  the  same  comment  must  be 
made  upon  the  following  sentence  from  the  opinion  in  Interstate  Com. 
Comn.  V.  Chicago  G.  W.  Ry.  Co.  (1908)  209  U.  S.  108,  117,  28  Sup.  Ct. 
493,  496,  52  L.  ed.  705,  "It  is  unnecessary  to  define  the  full  scope  and  mean- 
ing of  the  prohibition  found  in  sec.  3  of  the  Interstate  Commerce  Act  [re- 
lating to  discriminations],  or  even  to  determine  whether  the  language  is 
sufficiently  definite  to  make  the  duties  cast  on  the  Interstate  Commerce 
Commission  ministerial,  and  therefore  such  as  may  legally  be  imposed  upon 
a  ministerial  body,  or  legislative,  and  therefore,  under  the  Federal  Consti- 
tution, a  matter  for  congressional  action,  for,  within  any  fair  construction 
of  the  terms  'undue  or  unreasonable,'  the  findings  of  the  circuit  court  place 
the  action  of  the  railroads  outside  the  reach  of  condemnation." 

48  (1886)  116  U.  S.  307,  347,  352,  6  Sup.  Ct.  334,  348,  349,  388,  391,  1191, 
29  L.  ed.  636;  reversing  Farmers'  L.  &  T.  Co.  v.  Stone  (1884)  20  Fed.  270; 
Illinois  C.  R.  Co.  v.  Stone  (1884)  20  Fed.  468. 

49  Stone  V.  Yazoo  &  M.  V.  R.  Co.  (1885)  62  Miss.  607,  645,  21  A.  &  E. 
R.  Cas.  6,  16,  where  the  only  reference  to  the  subject  is  as  follows:  "The 
act  creating  the  railroad  commission  is  not  violative  of  the  14th  Amend- 
ment of  the  Constitution  of  the  United  States,  or  of  any  provision  of  the 
constitution-  of  the  state,  in  that  it  creates  a  commission  and  charges  it 
with  the  duty  of  supervising  railroads;"  unless  there  is  some  reference  to 
the  subject  in  the  declaration,  "We  hold  that  the  state  had  the  right  to 
create  an  agency  of  the  state  to  exercise  such  supervision  as  it  may  law- 
fully employ  over  railroads  within  its  limits."  See  comment  on  Stone  v. 
Natchez,  J.  &  C.  R.  Co.  in  note  52,  infra. 

oO  "If  a  state  court  has  decided  that  a  law  is  in  harmony  with  the  state 
constitution  its  validity,  so  far  as  the  state  constitution  is  concerned,  can- 
not be  questioned  elsewhere:"  Patterson,  The  United  States  and  the 
States  Under  the  Constitution,  2d  ed.,  p.  282.  See  also  cases  cited  in  notes 
45,  47  in  Chapter  3,  infra. 

51  The  court  stated  the  contention  that  the  act  conferred  both  legislative 


74  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

courts  which  considered  that  law  was  devoted  almost  ex- 
clusively to  other  constitutional  questions,^^  so  that  it 

and  judicial  powers  on  the  commission  and  was  therefore  repugnant  to  the 
constitution  of  Mississippi,  and  made  simply  this  reply,  "The  Supreme 
Court  of  Mississippi  has  decided  .  .  .  that  the  statute  is  not  repug- 
nant to  the  constitution  of  the  state  'in  that  it  creates  a  commission  and 
charges  it  with  the  duty  of  supervising  railroads.'  To  this  we  agree,  and 
this  is  all  that  need  be  decided  in  this  case:"  116  U.  S.  336,  6  Sup.  Ct. 
347,  29  L.  ed.  646.— In  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed. 
866,  875,  1  L.  R.  A.  744,  in  answer  to  the  contention  that  legislative  power 
was  delegated  to  the  commission  in  the  statute  there  considered,  the  court 
said  that  "the  validity  of  the  act  of  the  state  of  Mississippi,  delegating 
like  power  to  a  board  of  railroad  commissioners,  was  before  the  Supreme 
Court  of  the  United  States,  and  although  this  specific  objection  was  made 
by  counsel  to  its  validity,  the  act  was  sustained,"  without,  however,  any 
special  reference  being  made  to  this  question  in  the  opinion. — An  examina- 
tion of  unreported  portions  of  the  briefs  filed  in  the  Supreme  Court  shows 
that  counsel  did  there  discuss,  with  ordinary  ability,  the  question  of  dele- 
gation of  legislative  power  to  an  administrative  body.  And  in  62  Miss, 
at  626  there  are  references  to  the  question  of  delegation  of  power  in  a  few 
authorities  cited  in  a  brief  against  the  law.  Were  it  not  for  the  latter,  we 
might  say  that,  so  far  as  shown  by  the  reports  of  any  of  the  cases,  the 
contention  that  the  statute  was  not  in  accordance  with  the  distribution  of 
powers  by  the  state  constitution  might  have  meant  merely  that  if  the  state 
had  any  control  whatever  over  the  rates  of  a  railroad  the  charter  of  which 
had  granted  to  it  in  general  terms  the  right  to  regulate  its  own  rates,  that 
control  could  be  exercised  only  through  a  strictly  judicial  body.  In  Illinois 
C.  R.  Co.  V.  Stone  (1884)  20  Fed.  468,  471,  the  court  said,  "The  question 
of  what  is  a  reasonable  compensation  in  such  cases  is  one  alone  for  judicial 
ascertainment,  when  not  fixed  by  the  charter,  and  no  power  is  reserved 
therein,  thereafter  to  fix  it." 

52  In  addition  to  the  cases  cited  above,  see  Stone  v.  Natchez,  J.  &  C.  R. 
Co.  (1885)  62  Miss.  646,  21  A.  &  E.  R.  Cas.  17,  which  involves  simply  the 
impairment  of  contract  clause.  The  court  there  says  that  the  commission 
merely  secured  conformity  by  the  road  with  the  implied  condition  in  its 
charter  to  carry  for  reasonable  rates.  "The  final  test  of  reasonableness  of 
rates  is  not  with  the  railroad  commission,  but,  as  before,  with  the  govern- 
ment, through  its  judiciary.  Fixing  rates  by  the  commission  is  not  final 
and  conclusive  against  a  railroad  company.  It  is  only  prima  facie  correct, 
and  may  be  tested  by  the  courts.  If  the  action  of  the  commission  is  just, 
it  should  prevail.  If  it  is  not,  it  may  be  assumed  that  it  will  not.  Of 
that  none  should  complain.  The  concession  made  in  the  bill  of  the  appellee 
of  the  right  of  judicial  control  to  prevent  extortion  and  unjust  discrimina- 
tion is  an  admission  of  the  right  of  government  control;  and  if  the  state 
can  control  or  supervise  at  all  it  may  select  the  agency  through  which  to 


DELEGATION   OF  POWER   BY   LEGISLATURE.  75 

seems  that  even  if  the  Supreme  Court  had  had  the  right 
to  pass  upon  the  validity  of  the  delegation  of  power,  its 
decision  upon  that  point  would  be  of  no  greater  value  as 
a  precedent  than  was  that  casual  decision  upon  the  com- 
merce clause  in  the  Granger  Cases  ^^  which  was  overruled 
in  Wabash,  St.  L.  &  P.  Ey.  Co.  v.  Illinois.^^ 

In  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  ^^  and  Min- 
neapolis &  St.  L.  R.  Co.  V.  Minnesota  ^"^  the  question  of 
the  delegation  of  legislative  power  was  not  discussed 
either  by  the  court  of  last  resort  or  by  the  lower  courts. 
In  Georgia  R.  &  B.  Co.  v.  Smith,^^'^  while  the  court  refer- 
red to  the  decision  of  the  state  court  upon  the  constitu- 
tionality of  the  delegation  of  power,  it  properly  refrained 
from  comment  thereon.  And  in  Reagan  v.  Farmers'  L. 
&  T.  Co.^^  it  had  been  shown  in  the  lower  court  ^^  that  the 
state  of  Texas  had  considered  it  advisable  to  amend  its 
constitution  in  order  to  authorize  the  regulation  of  rates 
by  commission;  therefore,  while  the  Supreme  Court  did 
say®*^  that  a  state  may  regulate  by  means  of  a  commis- 
sion, that  case  certainly  does  not  show  that  in  the  absence 
of  an  express  provision  in  the  state  constitution  a  legisla- 

exert  its  right."  But  it  does  not  follow  that  i-he  legislature  may  select  an 
agency  as  freely  as  the  state  itself  might  do  it,  and  that  point  is  not  dis- 
cussed. 

53  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa  (1876)  94  U.  S.  155,  163,  24  L.  ed.  94; 
Peik  V.  Chicago  &  N.  W.  Ry.  Co.  (1876)  94  U.  S.  164,  177,  178,  24  L.  ed.  97. 

54  (1886)   118  U.  S.  557,  566-569,  7  Sup.  Ct.  4,  7-9,  30  L.  ed.  244. 

55  (1900)  176  U.  S.  167,  20  Sup.  Ct.  336,  44  L.  ed.  417  (1898)  90  Fed. 
363. 

56  (1902)  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151;  State  v.  Minne- 
apolis 6i  St.  L.  R,  Co.   (1900)   80  Minn.  191,  83  N.  W.  60. 

57  (1888)   128  U.  S.  174,  178,  9  Sup.  Ct.  47,  48,  32  L.  ed.  377. 

58  (1894)   154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed.  1014. 

59  Mercantile  T.  Co.  v.  Texas  &  P.  Ry.  Co.  (1892)  51  Fed.  529,  532. 

60  154  U.  S.  at  393,  394,  14  Sup.  Ct.  at  1053,  38  L.  ed.  at  1022. 


76  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

ture  may  bestow  upon  a  commission  as  much  power  over 
rates  as  the  legislature  itself  might  exercise. 

The  court  of  last  resort  has  said  at  times  that  the 
naming  of  specific  rates  for  future  transportation  is  a  leg- 
islative power,^^  and  at  times  that  it  is  an  administrative 
power,^^  and  the  court  has  also  appeared  undecided  upon 
this  point.^^  Yet,  as  we  have  already  observed®*  that 
there  are  some  powers  which  may  be  exercised  by  the  leg- 
islature itself  but  the  exercise  of  which  is  not  confined 
strictly  to  the  legislature  and  may,  therefore,  be  assigned 
by  it  to  an  administrative  organ,  these  cases  need  not  con- 
fuse us.  Taken  together  they  indicate  no  more  than  that 
a  commission  may  not  name  specific  rates  without  legis- 
lative authorization  but  that  a  commission  may  be  au- 
thorized to  ascertain  facts  as  to  rates  and  to  state  in  spe- 
cific form  principles  established  by  the  legislature. 

Decisions  of  Supreme  Court  on  delegation  of  power. 

42.  The  court  has  sustained  several  federal  ®°  and 
state  ^®  statutes  which  delegated  power  to  administrative 
or  executive  officers  and  which  were  attacked  upon  the 

eiMcChord  v.  Louisville  &  N.  R.  Co.  (1902)  183  U.  S.  483,  495,  22  Sup. 
Ct.  165,  169,  46  L.  ed.  289;  Interstate  Com.  Comn.  v,  Alabama  M.  Ry.  Co. 
(1897)  168  U.  S.  144,  162,  18  Sup.  Ct.  45,  47,  42  L.  ed.  414;  Interstate 
Com.  Comn.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (1897)  167  U.  S.  479,  499, 
500,  501,  505,  506,  511,  17  Sup.  Ct.  896,  900,  901,  902,  903,  905,  42  L.  ed. 
243.     See  also  notes  18,  19,  supra. 

62  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649,  663,  15  Sup. 
Ct.  484,  490,  39  L.  ed.  567;  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U. 
S.  362,  394,  14  Sup.  Ct.  1047,  1053,  38  L.  ed.  1014.    See  also  note  62,  supra. 

63  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  302,  397,  14  Sup.  Ct. 
1047,  1054,  38  L.  ed.  1014. 

64  Sees.  29,  36,  supra. 

65  Union  B.  Co.  v.  United  States  (1907)  204  U.  S.  364,  27  Sup.  Ct.  367, 
51  L.  ed.  523,  and  cases  there  cited.  And  see  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Taylor  (1908)  210  U.  S.  281,  287,  28  Sup.  Ct.  616,  617,  52  L.  ed.  1061; 
Hannibal  B.  Co.  v.  United  States   (1911)    221  U.  S.  194,  205,  31   Sup.  Ct. 


DELEGATION   OF   POWER   BY   LEGISLATURE.  77 

ground  that  the  power  delegated  was  legislative,  the 
court  saying  that  the  officers  were  merely  authorized  to 
ascertain  facts  and  to  apply  the  law  in  accordance  with 
those  facts.  In  some  of  the  cases  this  explanation  of  the 
statute  is  a  rather  strained  one;  ^''  but  the  actual  decisions 
in  those  cases  are  more  than  off-set  by  the  reasons  which 
the  court  gave  in  support  of  the  decisions.^^ 

Indeed,  the  correct  rule  has  nowhere  been  stated  more 
clearly  than  in  the  recent  case  of  Interstate  Com.  Comn. 
V.  Goodrich  Transit  Co.,^^  in  which  a  grant  to  the  com- 
mission of  power  to  prescribe  a  uniform  system  of  ac- 
counting and  book-keeping  was  sustained.'^  In  that  case 
the  court  said, ' '  The  Congress  may  not  delegate  its  purely 
legislative  power  to  a  commission,  but,  having  laid  down 
the  general  rules  of  action  under  which  a  commission 
shall  proceed,  it  may  require  of  that  commission  the  ap- 
plication of  such  rules  to  particular  situations  and  the  in- 
vestigation of  facts,  with  a  view  to  making  orders  in  a 
particular  matter  within  the  rules  laid  down  by  the  Con- 
gress." "^^ 

603,  606,  55  L.  ed.  699;  Monongahela  B.  Co.  v.  United  States  (1910)  216 
U.  S.  177,  30  Sup.  Ct.  356,  54  L.  ed.  435;  United  States  v.  Grimaud  (1911) 
220  U.  S.  506,  517,  518,  31  Sup.  Ct.  480,  483,  55  L.  ed.  563. 

66  Red  "C"  O.  M.  Co.  V.  Board  of  Agriculture  (1912)  222  U.  S.  380,  32 
Sup.  Ct.  152,  56  L.  ed.  240. 

67  Consider  criticisms  in  dissenting  opinion  in  Field  v.  Clark,  (1892) 
143  U.  S.  649,  697,  12  Sup.  Ct.  495,  506,  36  L.  ed.  294;  Gilhooly  v.  City  of 
Elizabeth  (1901)  66  N.  J.  L.  484,  486,  49  Atl.  1106,  1107;  and  criticism  of 
similar  legislation  in  Prentice  and  Egan,  The  Commerce  Clause  of  the 
Federal  Constitution,  313. 

68  On  the  bearing  of  Field  v.  Clark  (1892)  143  U.  S.  649,  12  Sup.  Ct. 
495,  36  L.  ed.  294,  on  railroad  rate  regulation,  see  Olney,  Railroad  Rate 
Making  by  Congress,  181  N.  A.  Rev.  490;  Peck,  Governmental  Regulation 
of  Railroad  Rates,  13  Am.  La^vyer,  485,  486;  Whitney,  The  Reciprocity 
Acts  of  1890,  31  Am.  L.  Reg.  186,  187. 

69  (1912)   224  U.  S.  194,  32  Sup.  Ct.  436,  56  L.  ed.  729. 
"^0  On  such  legislation  see  section  46,  infra. 

71  224  U.  S.  at  214,  32  Sup.  Ct.  at  441,  56  L.  ed.  at  737. 


78  THE  DISTEIBUTION  OF  GOVERNMENTAL  POWERS. 

In  another  recent  case  '^^  the  court  has  decided  that  a 
federal  statute  which  authorized  the  Secretary  of  Agri- 
culture to  regulate  the  occupancy  and  use  of  the  forest 
reservations  of  the  United  States  indicated  sufficiently  the 
policy  which  was  to  be  enforced  by  the  Secretary  and 
therefore  the  making  of  regulations  by  him  was  not  the 
exercise  of  a  power  which  was  strictly  legislative."^^  So 
interpreted  the  decision  certainly  supports  the  position 
taken  in  this  chapter.'^'* 

The  court  has  sustained  legislation  which  delegated  to 
executive  officers  distinctively  congressional  power  con- 
cerning the  Philippine  Islands.''^^     But  those  decisions 

72  United  States  v.  Grimaud  (1911)  220  U.  S.  506,  31  Sup.  Ct.  480,  56 
L.  ed.  563.  The  decision  was  followed  in  Light  v.  United  States  (1911) 
220  U.  S.  523,  31  Sup.  Ct.  485,  55  L.  ed.  570.  The  statute  in  question  had 
been  declared  unconstitutional  in  United  States  v.  Grimaud  (1909)  170 
Fed.  205,  and  that  decision  had  been  affirmed  by  a  divided  court  (1910) 
216  U.  S.  614,  30  Sup.  Ct.  576,  54  L.  ed.  639. 

73  220  U.  S.  at  515,  516,  31  Sup.  Ct.  at  482,  55  L.  ed.  at  567. 

74  The  court  also  referred  to  the  rule  that  powers  of  local  self-govern- 
ment may  be  granted  to  the  localities  affected,  a  rule  which  has  no  bearing 
upon  the  legislation  under  consideration,  and  it  referred  twice  to  Brodbine 
V.  Revere  (1903)  182  Mass.  599,  66  N.  E.  607,  \?hich  had  been  improperly 
based  on  that  rule.  And  the  court  made  other  references  which  did  not 
fully  recognize  the  limitations  to  the  extent  to  which  an  administrative 
organ  may  be  allowed  to  "fill  up  details."  But  in  view  of  the  facts  of  the 
case  and  the  reason  given  earlier  in  the  opinion  these  expressions  may  be 
disregarded. — The  court  also  pointed  out  that  in  grazing  their  sheep  upon 
the  forest  reserve  without  a  permit  the  defendants  were  making  an  un- 
lawful use  of  property  which  belonged  to  the  government.  And  it  must  be 
conceded  that  even  if  the  statute  under  consideration  were  invalid  that 
fact  would  not  warrant  the  appropriation  of  public  property  by  individ- 
uals. This  in  itself  is  certainly  a  sufficient  ground  for  the  decision  in 
Light  v.  United  States  (1911)  220  U.  S.  523,  31  Sup.  Ct.  485,  55  L.  ed. 
570,  if  not  for  that  in  United  States  v.  Grimaud  (1911)  220  U.  S.  506,  31 
Sup.  Ct.  480,  55  L.  ed.  563.     See  also  note  115,  infra. 

75  United  States  v.  Heinszen  (1907)  206  U.  S.  370,  27  Sup.  Ct.  742,  51 
L.  ed.  1098;  Dorr  v.  United  States  (1904)  195  U.  S.  138,  24  Sup.  Ct.  808, 
49  L.  ed.  128.  See  also  The  Louisa  Simpson  (1871)  2  Sawyer,  57,  61,  71, 
15  Fed.  Cas.  953,  955,  958. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  79 

cannot  justify  similar  legislation  for  territory  which  is 
under  the  Constitution  of  the  United  States. 

The  court  has  also  sustained  a  federal  law  which  al- 
lowed local  authorities  to  make  certain  ' '  supplementary 
regulations"  concerning  the  acquisition  of  title  to  public 
lands  J  ^  The  opinion  does  not  contain  a  thoroughly  satis- 
factory discussion  of  the  question  involved,'^^  yet  the  rea- 
son for  the  decision  may  be  said  to  be  that  the  court 
thought  that  the  purpose  for  which  the  power  had  been 
given  to  Congress  had  been  sufficiently  observed  by  the 
regulations  which  Congress  had  itself  prescribed,  and  as 
vast  interests  would  suffer  from  a  decision  that  the  fed- 
eral statute  was  unconstitutional  the  court  would  not  so 
decide  where  the  invalidity  was  not  clear  J  ^  As  the 
court  did  not  notice  it,  we  need  not  lay  much  stress  upon 
the  fact  that  the  local  authorities  were  not  merely  admin- 
istrative and  that  apparently  the  ''supplementary  regu- 
lations" were  legitimate  exercises  of  local  self-govern- 
ment.'^^   The  decision  that  the  power  to  make  those  ' '  sup- 

76  Butte  C.  W.  Co.  V.  Baker  (1905)  196  U.  S.  119,  25  Sup.  Ct.  211,  49 
L.  ed.  409.     See  also  United  States  v.  Ormsbee   (1896)   74  Fed.  207. 

77  See  196  U.  S.  125,  126,  25  Sup.  Ct.  213,  49  L.  ed.  412.  The  question  is 
how  far  the  power  of  Congress  is  exclusive.  The  court  does  not  show 
whether  the  owner  of  the  land  had  actually  granted  to  its  agent,  Congress, 
permission  to  delegate  a  portion  of  the  power  committed  to  it. — Granting 
that  Congress  thought  that  it  was  acting  for  the  best,  that  fact  does  not 
answer  the  constitutional  question. — The  question  is  not  whether  the  power 
is  legislative  in  its  nature,  but  whether  it  is  entrusted  to  the  exclusive 
control  of  Congress,  so  that  even  if  the  ci  urt  could  say  boldly  that  neither 
the  statute  nor  the  "supplementary  regulations"  were  in  any  aspect  legis- 
lative in  character  the  problem  would  not  be  entirely  solved. 

78  A  statute  must  always  be  upheld  unless  its  invalidity  is  clear,  regard- 
less of  the  amount  involved. 

79  In  this  case  the  regulations  were  made  by  a  state;  but  a  state  could 
not  exercise  such  power  over  interstate  rates:  see  Stoutenburgh  v.  Hennick 
(1889)  129  U.  S.  141,  9  Sup.  Ct.  256,  32  L.  ed.  637;  and  also  McCornick  v. 
Western  U.  T.  Co.  (1879)  79  Fed.  449,  451;  compare  In  re  Rahrer  (1891) 
140  U.  S.  545,   11  Sup.  Ct.  865,  35  L.  ed.  572.— Perhaps  the  statute  was 


80  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

plementary  regulations"  had  not  been  clearly  shown  to 
belong  exclusively  to  Congress,  while  it  may  have  some 
bearing  upon  the  question  how  far  the  power  of  Congress 
under  the  commerce  clause  is  exclusive,  does  not  consti- 
tute a  decision  upon  the  extent  to  which  the  power  of  Con- 
gress is  exclusive  under  any  clause  of  the  Constitution 
other  than  the  one  considered  in  that  case.^° 

The  Supreme  Court  of  the  United  States  has  also  re- 
ferred to  the  distribution  of  governmental  powers  in  sev- 
eral cases  involving  state  legislation,  but  its  remarks  in 
those  cases  were  of  comparatively  little  value.^^ 

analogous  to  that  considered  in  In  re  Rahrer,  and  merely  withdrew  a  with- 
drawable federal  restraint  upon  a  state's  power  over  property  within  its 
borders.  Between  the  exclusive  power  of  the  federal  government  and  the 
exclusive  power  of  the  states  there  are  fields  of  jurisdiction  which  Congress 
may  place  under  state  control,  which  are  of  such  a  nature  that  we  might 
say  that  the  state  and  federal  governments  held  them  in  common  because 
of  the  vicinage  to  the  exclusive  domains  of  each,  were  it  not  for  the  rule 
of  the  supremacy  of  federal  law,  a  rule  found  in  the  Constitution  but  some- 
times misapplied :  in  addition  to  In  re  Rahrer  see  Patterson,  The  United 
States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  269,  note;  Halter 
V.  Nebraska  (1907)  205  U.  S.  34,  41,  42,  27  Sup.  Ct.  419,  422,  51  L.  ed. 
696 ;  and,  by  way  of  analogy,  sec.  29,  supra.  Thus,  while  Congress  may  not 
authorize  the  states  to  coin  money  it  may  authorize  them  to  tax  federal 
agencies  which  are  within  their  borders:  see  Patterson,  op.  cit.,  p.  48;  and 
also  U.  S.  Constitution,  Art.  I,  sec.  10. — In  connection  with  this  note  in 
general  consider  also  Kansas  v.  Colorado  (1907)  206  U.  S.  46,  92,  27  Sup. 
Ct.  655,  665,  51  L.  ed.  950;  Allen  v.  Riley  (1906)  203  U.  S.  347,  27  Sup. 
Ct.  95,  51  L.  ed.  216;  Woods  &  Sons  v.  Carl  (1906)  203  U.  S.  358,  27  Sup. 
Ct.  99,  51  L.  ed.  219;  2  Am.  Pol.  Sci.  Rev.  347. 

80  "The  line  has  not  been  exactly  drawn  which  separates  those  import- 
ant subjects,  which  must  be  entirely  regulated  by  the  legislature  itself, 
from  those  of  less  interest,  in  which  a  general  provision  may  be  made,  and 
power  given  to  those  who  are  to  act  under  such  general  provisions  to  fill 
up  the  details:"  Wayman  v.  Southard  (1825)   10  Wheat.  1,  43,  6  L.  ed.  253. 

81  Michigan  C.  R.  Co.  v.  Powers  (1906)  201  U.  S.  245,  26  Sup.  Ct.  459, 
50  L.  ed.  744,  where  the  distribution  was  clearly  directed  by  the  state  con- 
stitution; Dreyer  v.  Illinois  (1902)  187  U.  S.  71,  23  Sup.  Ct.  28,  47  L.  ed. 
79;  St.  Louis  C.  C.  Co.  v.  Illinois  (1902)  185  U.  S.  203,  22  Sup.  Ct.  616, 
46  L.  ed.  872.  The  two  latter  cases  had  been  taken  up  from  the  state 
court  of  last  resort.     The  rule  as  to  the  distribution  of  governmental  pow- 


DELEGATION  OF  POWER  BY  LEGISLATURE.  81 

Ascertainment  of  facts. 

43.  Turning  again  to  the  decisions  of  state  courts,  we 
must  note  that  they  have  frequently  sustained  legislation 
by  which  administrative  officers  were  empowered  to  apply 
the  law  in  accordance  with  facts  to  be  ascertained  by 
those  officers.  Thus  they  have  sustained  legislation  by 
which  a  commission  was  authorized  to  mark  boundary 
lines  between  counties,^^  a  commission  was  authorized 

ers  is  distinctly  separate  from  other  rules  of  the  constitutions,  however 
much  laws  which  violate  that  rule  may  also  violate  other  rules.  See  also 
Soliah  v.  Heskin  (1912)  222  U.  S.  522,  32  Sup.  Ct.  103,  56  L.  ed.  294; 
Welch  V.  Swasey  (1909)  214  U.  S.  91,  104,  29  Sup.  Ct.  567,  570,  53  L.  ed. 
923.  The  court  said  in  Atlantic  C.  L.  R.  Co.  v.  North  C.  Corp.  Comn. 
(1907)  206  U.  S.  1,  19,  27  Sup.  Ct.  585,  591,  51  L.  ed.  933,  that  state  regu- 
lation of  railroads  "may  be  exerted  either  directly  by  the  legislative  au- 
thority or  by  administrative  bodies  endowed  with  power  to  that  end."  The 
case  came  up  from  the  supreme  court  of  the  state,  and  the  question  of  dele- 
gation of  power  was  not  considered.  Every  one  must  admit  that  a  legisla- 
ture may  confer  some  power  upon  commissions.  But  the  case  does  nothing 
whatever  towards  clearing  up  the  question  of  how  much  power  a  legislature 
may  bestow  upon  a  commission  without  violating  that  distribution  of 
powers  which  is  usually  made  by  the  constitutions. 

82  Trinity  County  v.  Mendocino  County  (1907)  151  Cal.  279,  90  Pac. 
685.  Although  the  line  was  marked  incorrectly  it  constituted  the  legal 
boundary.  In  Kennedy  v.  Mayor  (1902)  24  R.  I.  461,  53  Atl.  317,  the  court 
sustained  a  law  which  directed  the  appointment  of  a  commission  to  divide 
a  city  into  wards  and  voting-districts.  The  correctness  of  the  decision  is 
not  quite  so  clear  as  the  correctness  of  the  decision  in  Trinity  County  v. 
Mendocino  County,  but  it  seems  to  be  sound.  See  also  Hunter  v.  City  of 
Tracy  (1908)  104  Minn.  378,  383,  116  N.  W.  922,  924.  Rouse  v.  Thomp- 
son (1907)  228  111.  522,  81  N.  E.  1109,  was  different  from  the  above  cases. 
In  it  the  court  declared  unconstitutional  an  act  authorizing  political  com- 
mittees to  establish  delegate  districts  in  their  respective  counties.  The  de- 
cision can  be  supported,  if  at  all,  only  upon  the  ground  that  so  much  dis- 
cretion was  allowed  to  the  committees  that  their  decisions  would  be  of  a 
legislative  nature,  and  that  the  committees  were  of  such  a  character  that 
legislation  by  them  could  not  be  justified  as  exercises  of  local  self-govern- 
ment. But  while  the  court  uses  language  which  taken  alone  would  indi- 
cate that  it  considered  the  work  strictly  legislative  in  character,  it  deprives 
that  language  of  any  importance  by  apparently  admitting  that  the  work 
could  be  entrusted  to  an  administrative  organ  and  insisting  that  the  com- 
mittees could  not  constitutionally  be  made  governmental  organs.    In  taking 


82  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

to  determine  the  efficiency  of  a  voting-machine  the  use  of 
which,  if  efficient,  was  directed  by  law,^^  examining 
boards  were  authorized  to  inquire  into  the  qualifications 
of  persons  seeking  to  exercise  designated  public  occupa- 
tions and  to  license  those  who  were  properly  qualified,^^ 

tlie  latter  ground  the  court  seems  to  be  in  error:  see  8  Cyc.  831;  Seholle 
V.  State  (1900)  90  Md.  729,  46  Atl.  326,  50  L.  R.  A.  411;  St.  Louis,  L  M. 
&  S.  Ry.  Co.  V.  Taylor  (1908)  210  U.  S.  281,  287,  28  Sup.  Ct.  616,  617,  52 
L.  ed.  1061;  dissenting  opinion  in  Rouse  v.  Thompson;  discussion  of  this 
case  in  21  Harv.  L.  Rev.  215,  216. 

SSElwell  V.  Comstock  (1906)  99  Minn.  261,  109  N.  W.  113,  698,  7  L.  R. 
A.  N.  S.  621.  See  also  Vandalia  R.  Co.  v.  Railroad  Comn.  (1913)  Ind., 
101  N.  E.  85. 

84  Ex  parte  McManus  (1907)  151  Cal.  331,  90  Pac.  702,  state  board  of 
architecture — see  concurring  opinion;  In  re  Thompson  (1904)  36  Wash. 
377,  78  Pac.  899,  state  board  of  dental  examiners;  State  v.  Briggs  (1904) 
45  Ore.  366,  77  Pac.  750,  78  Pac.  361,  state  board  of  barber  examiners; 
Ex  parte  Whitley  (1904)  144  Cal.  167,  77  Pac.  879,  state  board  of  dental 
examiners;  Ex  parte  Gerino  (1904)  143  Cal.  412,  77  Pac.  166,  66  L.  R.  A. 
249,  state  board  of  medical  examiners;  State  v.  Thompson  (1901)  160  Mo. 
333,  60  S.  W.  1077,  54  L.  R.  A.  950,  state  auditor  authorized  to  license 
persons  of  good  character  to  make  books  on  horse  races  at  race  courses  of 
good  repute;  State  v.  Heinemann  (1891)  80  Wis.  253,  49  N.  W.  818,  state 
board  of  pharmacy.  In  People  v.  Reid  (1912)  151  N.  Y.  App.  Div.  324, 
136  N.  Y.  Supp.  428,  the  court  sustained  a  statute  which  authorized  the 
board  of  dental  examiners  to  revoke  a  license  obtained  improperly.  See 
also  Red  "C"  O.  M.  Co.  v.  Board  of  Agriculture  (1912)  222  U.  S.  380,  32 
Sup.  Ct.  152,  56  L.  ed.  240;  Baltimore  &  O.  R.  Co.  v.  Railroad  Comn.  (1912) 
196  Fed.  690;  State  v.  Loden  (1912)  117  Md.  373,  83  Atl.  564;  State  v. 
Crombie  (1909)  107  Minn.  166,  119  N.  W.  658;  Arwine  v.  Board  of  Medical 
Examrs.  (1907)  151  Cal.  499,  91  Pac.  319;  State  v.  Chittenden  (1906) 
127  Wis.  408,  107  N.  W.  500;  Hildreth  v.  Crawford  (1884)  05  Iowa,  339, 
21  N.  W.  667;  U.  S.  Rev.  Stats.,  sees.  4439-4442,  5  Fed.  Stats.  An.  398-400. 
And  there  have  been  a  number  of  cases  in  which  similar  statutes  were  sus- 
tained without  any  consideration  of  the  question  of  delegation  of  legisla- 
tive power.  Contra,  Harmon  v.  State  (1902)  66  Ohio  St.  249,  64  N.  E. 
117,  58  L.  R.  A.  618,  where  a  statute  which  authorized  examiners  to  license 
steam  engineers  who  should  be  found  "trustworthy  and  competent"  was 
declared  invalid  on  the  gi-ound  that  it  delegated  legislative  power.  The 
only  case  cited  by  the  court  was  Matthews  v.  Murphy,  referred  to  in  note 
87,  infra,  and  it  is  not  clear  that  that  case  turned  upon  the  question  of 
delegation  of  legislative  power.  Compare  State  v.  Gardner  (1898)  58  Ohio 
St.  599,  51  N.  E.  136,  41  L.  R.  A.  689.  In  connection  with  Harmon  v. 
State  consider  also  cases  cited  in  note  87,  infra. 


DELEGATION   OF   POWER   BY   LEGISLATURE.  83 

a  chief  of  police  was  authorized  to  determine  whether 
moving  pictures  were  obscene  or  immoral  and  to  refuse 
to  permit  their  exhibition  if  they  were  objectionable  in 
such  respect,^'^  state  boards  were  authorized  to  issue 
quarantine  and  other  regulations  for  the  protection 
of  the  health  of  the  community,^^  and  other  similar  or 

85  Block  V.  City  of  Chicago  (1909)  239  111.  251,  87  N.  E.  1011. 

86  Pierce  v.  Doolittle  (1906)  130  Iowa,  333,  106  N".  W.  751,  6  L.  R.  A.  N. 
S.  143;  Blue  v.  Beach  (1900)  155  Ind.  121,  56  N.  E.  89,  50  L.  R.  A.  64. 
In  State  v.  Snyder  (1912)  131  La.  145,  59  So.  44,  the  court  even  sustained 
a  statute  which  authorized  the  state  board  of  health  to  promulgate  a 
sanitary  code.  See  also  Isenhour  v.  State  (1901)  157  Ind.  517,  60  N.  E. 
40;  Hurst  v.  Warner  (1894)  102  Mich.  238,  60  N.  W.  440,  26  L.  R.  A.  484; 
Koppala  V.  State  (1907,  1908)  15  Wyo.  398,  414,  418,  89  Pac.  576,  579, 
93  Pac.  662,  663;  Cooper  v.  Schultz  (1866)  32  How.  Pr.  (X.  Y.)  107  (in 
the  last  of  which  the  courts  sustained  a  broad  grant  of  power  to  commis- 
sioners appointed  by  the  governor  and  senate:  see  pp.  112,  124)  ;  Walker  v. 
Towle  (1901)  156  Ind.  639,  59  N.  E.  20,  53  L.  R.  A.  749;  and  the  follow- 
ing cases  in  which  live  stock  quarantine  regulations  were  sustained:  State 
V.  McCarty  (1912)  5  Ala.  Ap.  212,  59  So.  543;  State  v.  Southern  Ry.  Co. 
(1906)  141  N.  C.  846,  54  S.  E.  294;  Commonwealth  v.  Cooper  (1902)  27 
Pa.  Co.  Ct.  199;  State  v.  Rasmussen  (1900)  7  Idaho,  1,  11,  59  Pac.  933, 
936,  52  L.  R.  A.  78.  In  Arbuckle  v.  Pflaeging  (1912)  20  Wyo.,  123  Pac. 
918,  the  court  sustained  a  statute  for  the  prevention  of  the  spread  of 
disease  among  animals  which  authorized  the  state  veterinarian,  when 
necessary,  to  require  their  spraying  or  dipping.  In  Ex  parte  Cox  (1883) 
63  Cal.  21,  where  a  statute  was  declared  unconstitutional,  too  broad  a 
power  had  been  granted  to  the  viticultural  commissioners.  In  State  v. 
Burdge  (1897)  95  Wis.  390,  70  N.  W.  347,  37  L.  R.  A.  157,  the  court  may 
have  decided  correctly  in  sustaining  the  same  objection  to  a  statute  (as 
interpreted  by  the  board  of  health)  which  dealt  with  dangerous  contagious 
diseases.  But  in  Schaezlein  v.  Cabaniss  (1902)  135  Cal.  466,  67  Pac.  755, 
56  L.  R.  A.  733,  the  court  seems  to  have  been  in  error  in  declaring  uncon- 
stitutional a  statute  which  provided  that  if  in  any  factory  there  were  pro- 
duced dangerous  substances  that  were  liable  to  be  inhaled  by  the  em 
ployees,  and  it  appeared  to  the  commissioner  of  labor  statistics  that  by 
the  use  of  some  mechanical  contrivance  such  inhalation  could  be  to  a  great 
extent  prevented,  he  should  require  the  use  of  such  contrivance.  With  that 
case  compare,  in  addition  to  the  cases  cited  above.  Arms  v.  Ayer  (1901)  192 
111.  601,  61  N.  E.  851,  58  L.  R.  A.  277,  which  concerned  a  law  conferring 
upon  factory  inspectors  power  as  to  the  erection  of  fire  escapes;  State  v. 
Vickens  (1905)  186  Mo.  103,  84  S.  W.  908,  which  concerned  a  law  con- 
ferring upon  factory  inspectors  powers  the  extent  of  which  is  not  clearly 


84  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

supposedly  similar  delegations  of  power  were  made.^'^ 

While  the  courts  have  not  always  sustained  statutes 

upon  those  subjects,  partly  because  some  of  the  statutes 

which  were  declared  unconstitutional  differed  in  charac^ 

shown  in  the  opinion;  and  Spiegler  v.  City  of  Chicago  (1905)  216  111.  114, 
128,  74  N.  E.  718,  722,  which  concerned  an  ordinance  which  declared  that 
devices,  to  be  approved  by  the  commissioner  of  public  works,  should  be 
placed  upon  oil-wagons  to  prevent  the  spilling  of  oil. 

S7  Sec  page  69  and  notes  82,  86,  supra;  language  of  court  in  Central 
of  Ga.  Ry.  Co.  v.  Railroad  Comn.  (1908)  161  Fed.  925,  at  986;  and 
Colorado  &  S.  Ry.  Co.  v.  State  R.  Comn.  (1913)  54  Colo.  64,  129  Pac. 
100;  Jones  v.  Belzoni  Drainage  Dist.  (1912)  102  Miss.,  59  So.  921;  State 
V.  Corvallis  &  E.  R.  Co.  (1911)  59  Ore.  450,  117  Pac.  980;  Schaake  v. 
Dolley  (1911)  85  Kan.  598,  118  Pac.  80,  37  L.  R.  A.  N.  S.  877;  State 
V.  Kenosha  E.  Ry.  Co.  (1911)  145  Wis.  337,  129  N.  W.  600;  Minneapolis, 
St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn.  (1908)  136  Wis.  146,  117 
N.  W.  846,  17  L.  R.  A.  N.  S.  821;  Coopersville  C.  Co.  v.  Lemon  (1908)  163 
Fed.  145;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Neal  (1906)  83  Ark.  591,  98  S. 
W.  958,  affirmed  as  to  this  point  in  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor 
(1908)  210  U.  S.  281,  287,  28  Sup.  Ct.  616,  617,  52  L.  ed.  1061.  In  Hand 
V.  Stapleton  (1903)  135  Ala.  156,  33  So.  689,  commissioners  were  directed 
to  construct  county  buildings  at  a  new  location  if  they  should  find  that 
the  work  could  be  paid  for  without  an  increase  in  the  tax  rate.  In  People 
V.  Harper  (1878)  91  111.  357,  commissioners  were  authorized  to  name  in- 
spection fees :  the  legislature  stated  the  principle  to  be  followed,  though 
the  court  does  not  dwell  on  this  fact  but  sustains  the  statute  with  unsound 
reasoning.  See  also  Merchants  Exchange  v.  Knott  (1908)  212  Mo.  616, 
111  S.  W.  565.  In  Lothrop  v.  Stedman  (1875)  42  Conn.  (Supp.)  583,  Fed. 
Cae.  No.  8519,  a  commissioner  was  directed  to  determine  and  announce 
whether  a  company  made  up  a  deficiency  in  its  assets,  thus  avoiding  a 
conditional  repeal  of  its  charter.  Local  option  and  similar  laws  have  been 
frequently  sustained  upon  the  ground  that  the  power  delegated  was  merely 
that  of  determining  questions  of  fact.  It  seems  that  that  ground  does  not 
furnish  a  correct  basis  for  those  decisions:  see  note  7,  supra.  It  may,  pos- 
sibly, answer  objections  to  statutes  considered  in  Soliah  v.  Cormack  (1908) 
17  N.  D.  393,  401,  402,  117  N.  W.  125,  128;  State  v.  Bryan  (1905)  50  Fla. 
293,  369,  370,  39  So.  929,  953;  Leeper  v.  State  (1899)  103  Tenn.  500,  524, 
53  S.  W.  962,  967,  48  L.  R.  A.  167,  172  (and  see  State  v.  Storey  (1909) 
51  Wash.  630,  99  Pac.  878;  Iowa  L.  I.  Co.  v.  East  M.  L.  I.  Co.  (1900)  64 
N.  J.  L.  340,  347,  45  Atl.  762,  765)  ;  and  to  some  portions  of  the  statute 
considered  in  In  re  Gilbert  E.  Ry.  Co.  (1877)  70  N.  Y.  361,  366,  374;  In  re 
New  Y.  E.  R.  Co.  (1877)  70  N.  Y.  327,  though  it  seems  that  other  por- 
tions of  the  New  York  statute  can  be  supported  better,  if  not  only,  upon 
the  ground  that  the  power  was  granted  to  local  authorities:  see  page  50, 
supra.     A  statute  which  authorized  county  commissioners  to  determine  tlio 


DELEGATION  OF   POWER   BY  LEGISLATURE.  85 

ter  from  those  which  were  sustained  and  partly  because 
some  courts  have  taken  a  stricter  view  of  the  limitations 
upon  delegations  of  power  by  the  legislature  than  have 
been  taken  by  other  courts,  it  seems  clear  that  constitu- 
tional statutes  upon  those  subjects  may  be  framed.  Such 
questions,  for  instance,  as  the  appropriate  preventive  of 
the  spread  of  smallpox,  and  whether  a  man  possesses 
the  normal  qualifications  of  an  architect,  are  undeniably 
questions  of  fact. 

But  there  is  a  clear  difference  between  determining  the 
precise  application  of  a  law  established  by  the  legisla- 
ture and  stating  in  specific  form  a  regulation  which  is 

width  of  tires  which  must  be  used  for  the  transportation  of  heavy  loads 
upon  the  public  roads  of  their  respective  counties,  was  sustained  in  State 
V.  Messenger  (1900)  63  Ohio  St.  398,  59  N.  E.  105,  not  only  upon  the 
ground  that  a  power  of  local  government  was  thereby  granted  to  local 
authorities,  but  also  upon  the  ground  that  those  authorities  were  directed 
to  determine  questions  of  fact.  In  People  v.  Delaware  &  H.  C.  Co.  (189S) 
32  N.  Y.  App.  Div.  120,  52  N.  Y.  Supp.  850,  affirmed  (1901)  165  N.  Y. 
362,  59  N.  E.  138,  the  court  decided  that  legislative  power  was  not  dele- 
gated by  a  statute  which  empowered  commissioners,  acting  judicially,  it 
was  said,  to  determine  the  necessity  of  railroad  accommodations.  And 
statutes  authorizing  commissions  to  issue  orders  concerning  the  construc- 
tion and  operation  of  railroads  have  been  enforced  without  any  considera- 
tion of  the  question  of  delegation  of  legislative  power  in  a  number  of  cases. 
On  the  other  hand,  in  Noel  v.  People  (1900)  187  111.  587,  58  N.  E.  616,  52 
L.  R.  A.  287,  the  court  decided  that  legislative  power  was  delegated  by  a 
statute  which  granted  to  a  board  of  pharmacy  an  unconditional  power  to 
say,  as  to  some  parts  of  the  state,  what  individuals  who  were  not  regis- 
tered pharmacists  should  be  permitted  to  sell  patent  and  proprietary  medi- 
cines and  domestic  remedies,  and  under  what  restrictions  those  drugs 
should  be  sold,  although  the  court  admitted  the  validity  of  that  part  of  the 
statute  which  provided  that  no  one  might  sell  medicines  which  he  had  pre- 
pared or  compounded  himself  unless  he  were  a  registered  pharmacist.  And 
in  Matthews  v.  Murphy  (1901)  23  Ky.  L.  Rep.  750,  63  S.  W.  785,  54  L.  R. 
A.  415,  the  court  decided  that  the  state  board  of  health  might  not  revoke 
a  license  to  practice  medicine  because  of  "grossly  unprofessional  conduct 
of  a  character  calculated  to  deceive  or  defraud  the  public,"  although  ad^ 
mitting  the  validity  of  that  part  of  the  statute  which  authorized  the  board 
to  pass  upon  the  qualifications  of  persons  seeking  licenses  to  practice 
medicine:  yet  it  is  doubtful  whether  that  case  turned  upon  the  question  of 
delegation  of  legislative  power. 


86  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

not  the  application  of  a  law  established  by  the  legislature. 
Or,  to  refer  more  definitely  to  railroad  commissions,  while 
a  legislature  certainly  may  authorize  such  a  commission 
to  investigate  questions  concerning  rates  and  to  state  in 
specific  form  the  rates  which  may  be  charged  thereafter 
if  it  has  clearly  established  the  principles  which  are  to  be 
applied  by  the  commission,  the  cases  which  we  have  just 
considered  do  not  warrant  the  assertion  that  the  legisla- 
ture may  endow  the  commission  with  a  wide  discretion  as 
to  the  rates  which  shall  be  fixed.  We  have  seen  from 
other  authorities  that  while  the  legislature  may  authorize 
a  commission  to  ascertain  facts  and  to  apply  the  law  in 
accordance  with  those  facts,  it  must  point  out  the  facts 
which  are  to  be  ascertained,  it  must  determine  the  law 
which  is  to  be  applied.^ ^ 

Contingent  legislation— bearing  on  general  principles. 

44.  The  courts  have  also  held  that  a  statute  the  opera- 
tion of  which  depends  upon  a  contingency  does  not  nec- 
essarily delegate  legislative  power.  It  may  declare  com- 
pletely the  principles  of  governmental  action  although 
other  forces  determine  the  result  of  that  declaration  of 
principles.  Thus  the  treatment  of  a  foreign  corporation 
may  be  made  to  depend  upon  the  treatment  which  the 
home  state  of  that  corporation  extends  to  corporations  of 
the  state  whose  legislation  is  being  considered;  ®^  the  leg- 

88  See  cases  cited  in  note  29,  supra. 

89  People  V.  Fire  Assn.  of  Phila.  (1883)  92  N.  Y.  311;  Phoenix  I.  Co.  v, 
Welch  (1883)  29  Kan.  672;  Home  I.  Co.  v.  Swigert  (1882)  104  111.  653; 
and  see  Talbot  v.  Fidelity  &  C.  Co.  (1891)  74  Md.  536,  545,  22  Atl.  395,  398, 
13  L.  R.  A.  N.  S.  584.  Contra,  Clark  &  Murrell  v.  Port  of  Mobile  (1880) 
67  Ala.  217.  It  is  submitted  that,  while  the  decisions  in  support  of  the 
statutes  are  sound,  some  of  the  cases  which  the  Kansas  and  Illinois  courts 
cite  with  approval  were  not  legitimate  instances  of  contingent  legislation. 
In  Brig  Aurora  v.  United  States    (1813)    7   Cranch,  382,  3  L.  ed.  378,  the 


DELEGATION  OF  POWER  BY  LEGISLATURE.  gj 

islature  may  provide  that  the  pay  of  an  officer  of  the  state 
militia  in  active  service  with  troops  also  in  active  service 
shall  be  the  same  as  that  of  an  officer  of  a  corresponding 
grade  of  the  United  States  army;  ^^  commissioners  may  be 
authorized  to  construct  new  county  buildings  if  they  shall 
find  that  the  work  will  not  require  an  increase  in  the  tax 
rate,^^^  to  remove  de  facto  a  county  seat  upon  the  erection 
of  suitable  buildings  at  a  new  location,*^^  or  to  remove  the 
county  records  to  another  town  and  erect  a  court  house 
there  if  the  town  or  its  citizens  shall,  to  the  satisfaction 
of  the  commissioners  and  without  expense  to  the  county, 
provide  suitable  temporary  accommodations  and  a  suit- 
able building  site ;  ^-  a  legislature  may  require  a  railroad 
company  to  stop  its  trains  at  a  designated  place  if  indi- 
viduals shall,  within  a  given  time,  there  erect  a  station 
building  and  convey  it,  with  the  land  thereunder,  to  the 
company;^"  a  legislature  may  repeal  the  charter  of  a 

court  sustained  an  act  by  which,  an  embargo  resulted  upon  action  by 
Great  Britain.  And  in  Field  v.  Clark  (1892)  143  U.  S.  649,  12  Sup.  Gt.  495, 
36  L.  ed.  294,  the  court  sustained  a  federal  reciprocity  statute  in  which  the 
contingency  was  not  indicated  as  definitely  as  in  the  above  statutes. 

90  James  v.  Walker   (1910)    141  Ky.  88,  132  S.  W.  149. 
90a  Hand  v.  Stapleton   (1903)    135  Ala.  156,  33  So.  689. 

91  Peck  V.  Weddell  (1867)    17  Ohio  St.  271. 

92  Walton  V.  Greenwood  (1872)  60  Me.  356.  See  also  decision  in  Fournier 
V.  Commissioners  of  Aroostook  County  (1912)   109  Me.  48,  82  Atl.  545. 

93  State  V.  New  Haven  &  N.  Co.  (1876)  43  Conn.  351.  The  court  gave 
but  slight  consideration  to  the  question.  In  Mayor  v.  Clunet  ( 1865)  23  Md. 
449,  466-470,  after  a  fuller  discussion,  the  court  sustained  an  ordinance  for 
the  opening  of  a  street  which  provided  that  it  should  not  go  into  effect 
until  designated  individuals  had  adjusted  claims  against  the  city  arising 
out  of  a  prior  ordinance  for  the  same  purpose  which  had  been  repealed  after 
it  had  been  partly  executed.  See  also  State  v.  Montgomery  (1912)  176 
Ala.,  59  So.  294,  299,  300;  State  v.  Storey  (1909)  51  Wash.  630,  99 
Pac.  878;  City  of  Spokane  v.  Camp  (1908)  50  Wash.  554,  97  Pac.  770; 
United  States  v.  Oregon  R.  &  N.  Co.  (1908)  163  Fed.  640.  On  the  other 
hand,  in  Owensboro  &  N.  R.  Co.  v.  Todd  (1891)  91  Ky.  175,  15  S.  W.  56, 
11  L.  R.  A.  285,  the  court,  without  giving  satisfactory  reasons,  declared  that 


88  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

company  with  the  proviso  that  the  repeal  shall  not  go 
into  effect  if  the  company  shall  by  a  named  date  make  up 
a  deficiency  in  its  assets;  ^**  and,  though  it  is  questionable 
whether  this  is  really  contingent  legislation,  a  legislature 
may  doubtless  empower  individuals  to  do  certain  acts 
without  compelling  them  to  do  so,  as  in  the  statutes  au- 
thorizing the  formation  of  corporations. 

Yet  obviously  it  does  not  follow  that  because  contingent 
legislation  may  be  constitutional  therefore  a  statute  must 
be  valid  if  its  operation  is  uncertain.  In  the  cases  which 
we  have  already  considered  the  policy  of  the  state  was  de- 
termined only  by  the  legislature ;  but  it  would  be  far  oth- 
erwise if  the  contingency  consisted  of  the  will  of  another 
organ  of  government.  It  is  true  that  in  a  number  of  cases 
the  courts  have  sustained  statutes  which  in  reality  dele- 
gated legislative  power  to  the  voters  or  the  authorities  of 
localities,  upon  the  ground  that  in  each  case  the  operation 
of  the  statute  was  contingent.^^    And  yet,  without  criti- 

legislative  power  was  delegated  by  an  act  which  provided  that,  where  land 
for  the  right  of  way  had  been  given  to  a  railroad  company,  the  owners  of 
adjoining  lands  might  thereafter  require  the  company  to  fence  the  right  of 
way  at  its  own  expense;  and  in  Loughbridge  v.  Harris  (1871)  42  Ga.  500, 
is  an  unmistakably  incorrect  declaration  that  a  mill  dam  act  delegated  leg- 
islative power.  See  also  note  44,  supra. — As  a  legislature  does  not  necessar- 
ily allow  an  individual  to  shape  the  policy  of  the  government  whenever  it 
makes  the  operation  of  a  statute  contingent  upon  his  action  or  decision,  it 
seems  that  it  may  at  times  make  the  operation  of  a  statute  to  depend  upon 
his  decision  whether  or  not  he  will  contribute  from  his  own  possessions  or 
whether  he  will  waive  or  claim  rights  against  other  individuals  or  againstthe 
state,  even  though  it  may  not  grant  to  any  one  a  right  to  interfere  Avith  the 
property  or  conduct  of  others  save  for  the  obtaining  of  rights  which  are 
granted  to,  or  already  belonged  to,  himself. — The  court  in  In  re  New  York 
E.  R.  Co.  (1877)  70  N.  Y.  327,  343,  344,  gave  an  unsound  reason  for  saying 
that  the  commission  must  be  allowed  to  determine  for  the  incorporators  a 
number  of  questions  concerning  the  organization  of  the  company. 

94Lothrop  V.  Stedman  (1875)  42  Conn.  (Supp.)  583,  Fed.  Cas.  No.  8519. 

95  See  e.  g.,  Rankin  County  v.  Davis  (1912)  102  Miss.,  59  So.  811, 
813;  Mayor  v.  State  (1912)  102  Miss.,  59  So.  873;  State  v.  Sammona 
(1911)    62    Fla.    303,    314,    57    So.    196,   200;    People   v.    McBride    (1908) 


DELEGATION  OF  POWER  BY  LEGISLATURE,  89 

cising  the  actual  decisions,  we  must  note  that  not  only 
does  the  reason  given  in  support  of  them  appear  to  be  in- 
sufficient when  considered  by  itself,^*^  but  its  unsound- 
ness is  further  shown  by  the  fact  that  if  the  statutes  were 
sustainable  only  upon  that  reason  the  decision  would  be 

234  111.  146,  177,  84  N.  E.  865,  872;  Picton  v.  Cass  County  (1904)  13  N.  D. 
242,  100  N.  W.  711;  Ansley  v.  Ainsworth  (1902)  4  Ind.  Terr.  308,  69  S.  W. 
884;  State  v.  Cooley  (1896)  65  Minn.  406,  68  N.  W.  66;  Lum  v.  Mayor 
(1895)  72  Miss.  950,  18  So.  476;  State  v.  Pond  (1887)  93  Mo.  606,  6  S.  W. 
469;  People  v.  Hoffman  (1886)  116  111.  587,  5  N.  E.  596;  Schulherr  v.  Bor- 
deaux (1886)  64  Miss.  59,  8  So.  201;  Clarke  v.  Rogers  (1883)  81  Ky.  43; 
People  V.  City  of  Butte  (1881)  4  Mont.  174,  1  Pac.  414;  Guild  v.  City  of 
Chicago  (1876)  82  111.  472;  Fell  v.  State  (1875)  42  Md.  71;  Locke's  Appeal 
(1873)  72  Pa.  491;  Alcorn  v.  Hamer  (1860)  38  Miss.  652  (in  which  case 
the  briefs  were  elaborate);  Bull  v.  Read  (1855)  13  Gratt.  (Va.)  78;  Cin- 
cinnati, W.  &  Z.  R.  Co.  V.  Comrs.  (1852)  1  Ohio  St.  77;  and  also  State  v. 
Ure  (1912)  91  Neb.  31,  135  N.  W.  224;  Ex  parte  Beck  (1912)  162  Cal.  701, 
708,  124  Pac.  543,  546;  State  ex  rel.  Hunt  v.  Tausick  (1911)  64  Wash.  69, 
116  Pac.  651,  35  L.  R.  A.  N.  S.  802;  Orrick  v.  City  of  Ft.  Worth  (1908)  52 
Tex.  Civ.  App.  308,  114  S.  W.  677;  State  v.  Fountain  (1908)  6  PennewiU 
(Del.)  520,  539,  69  Atl.  926,  934;  Thalheimer  v.  Board  of  Suprs.  (1908)  11 
Ariz.  430,  94  Pac.  1129;  Ward  v.  State  (1908)  154  Ala.  227,  45  So.  655; 
State  V.  Kline  (1907)  50  Ore.  426,  93  Pac.  237;  Fonts  v.  Hood  River 
(1905)  46  Ore.  492,  81  Pac.  370,  1  L.  R.  A.  N.  S.  483;  In  re  New  Y.  E.  R. 
Co.  (1877)  70  N.  Y.  327;  State  v.  O'Neill  (1869)  24  Wis.  149;  State  v. 
Hunter  (1888)  38  Kan.  578,  17  Pac.  177  (in  which  case  the  appointment  of 
commissioners  and  the  exercise  of  powers  by  them  were  acts  administrative 
in  their  nature  for  the  improvement,  where  necessary,  of  the  excution  of  a 
law  the  execution  of  which  had  been  already  ordered )  ;  Cooley,  Constitutional 
Limitations,  7th  ed.,  167;  Sutherland,  Statutory  Construction,  2d  ed.,  p. 
170;  Oberholtzer,  The  Referendum  in  America,  328.  In  some  of  the  earlier 
decisions,  while  the  courts  hold  that  the  statutes  are  constitutional,  they 
apparently  consider  that  a  statute  may  be  so  worded  that  after  a  vote  is 
taken  the  constitutionality  of  a  condition  subsequent  will  be  unimportant: 
that  in  case  of  a  vote  to  enforce  the  law  the  condition  may  be  ignored:  see 
State  V.  Parker  (1857)  26  Vt.  357,  363;  Alcorn  v.  Hamer  (1860)  38  Miss. 
652 ;  although  in  case  of  a  contrary  vote,  whether  the  condition  were  con- 
stitutional or  not,  the  statute  could  not  be  enforced.  Compare  Rankin 
County  V.  Davis   (1912)    102  Miss.,  59  So.  811. 

96  The  distinction  between  valid  and  invalid  contingent  legislation  is  fur- 
ther brought  out  in  People  v.  Fire  Assn.  of  Phila.  (1883)  92  N.  Y.  311,  322, 
323;  Barto  v.  Himrod  (1853)  8  N.  Y.  483,  490,  495;  Ex  parte  Wall  (1874) 
4S  Cal.  279,  315;  Central  of  Ga.  Ry.  Co.  v.  Railroad  Comn.  (1908)  161  Fed. 
925,  986. 


90  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

flatly  inconsistent  with  the  decisions  that  the  legislature 
may  not  submit  to  the  voters  of  the  entire  state  the  ques- 
tion whether  or  not  a  law  shall  become  operative.^^  On 
the  other  hand,  no  question  of  the  consistency  of  the  two 
lines  of  decision  could  arise  if  the  former  had  been  based 
upon  the  ground  that  the  legislature  may  grant  some  self- 
government  to  the  localities.^^ 

Nor  may  any  right  of  the  legislature  to  submit  the  ques- 
tions whether  or  when  a  statute  shall  be  executed  ^^  be 
based  upon  its  undoubted  right  to  allow  administrative 
bodies  to  decide  some  questions  concerning  the  execution 
of  statutes  which  do  not  involve  the  desirability  of  gov- 
ernmental action.^  °° 

As  just  stated,  the  weight  of  authority  is  decidedly 
against  the  constitutionality  of  a  submission  to  the  vot- 

97  See  note  101,  infra. 
08  See  page  50,  supra. 

99  On  the  point  that  it  was  not  the  statute  but  the  operation  of  the  stat- 
ute which  was  contingent,  see  Cincinnati,  W.  &  Z.  R.  Co.  v.  Comrs.  (1852) 
1  Ohio  St.  77;  Locke's  Appeal  (1873)  72  Pa.  491;  United  States  v.  Rich- 
ards (1910)  35  D.  C.  App.  540;  Picton  v.  Cass  County  (1904)  13  N.  D.  242, 
100  N.  W.  711;  Clarke  v.  Rogers  (1883)  81  Ky.  43;  People  v.  City  of  Butte 
(1881)  4  Mont.  174,  1  Pac.  414;  People  v.  Reynolds  (1848)  5  Gill  (111.)  1; 
State  V.  Kline    (1907)    50   Ore.  426,   93  Pac.  237;    State  v.  Montgomery 

(1912)  176  Ala.,  59  So.  294,  298;  compare  59  So.  299.  In  the  Ohio  case 
the  court  said,  p.  88,  "The  law  is,  therefore,  perfect,  final,  and  decisive 
in  all  its  parts,  and  the  discretion  given  only  relates  to  its  execution. 
It  may  be  employed  or  not  employed;  if  employed,  it  rules  throughout; 
if  not  employed,  it  still  remains  the  law,  ready  to  be  applied  whenever 
the  preliminary  condition  is  performed.  The  true  distinction,  therefore, 
is  between  the  delegation  of  power  to  make  the  law,  which  necessarily 
involves  a  discretion  as  to  what  it  shall  be,  and  conferring  an  author- 
ity or  discretion  as  to  its  execution,  to  be  exercised  under  and  in  pur- 
suance of  the  law.  The  first  cannot  be  done;  to  the  latter  no  valid  objec- 
tion can  be  made."  Observe  the  phraseology.  But  while  the  legislature  un- 
questionably may  grant  the  power  to  use  some  discretion  when  executing  a 
statute,  yet,  except  where  legislative  power  may  be  delegated,  valid  oijec- 
tion  certainly  can  he  made  to  a  grant  of  discretion  as  to  whether  or  not  a 
statute  shall  he  executed. 

100  See  note  25,  supra. 


DELEGATION  OF  POWEK  BY  LEGISLATURE.  91 

ers  of  the  entire  state  of  the  question  whether  or  not  a 
law  shall  become  operative;  ^^^  and  yet  a  concession  of 
the  validity  of  such  legislation  would  not  involve  a  con- 
cession of  the  validity  of  legislation  which  should  grant  a 
similar  veto  power  to  an  administrative  organ.  And  even 
if  the  legislature  after  framing  an  otherwise  complete 
statute  might  allow  an  administrative  organ  to  decide 
whether  or  not  that  statute  should  be  enforced,  it  would 
not  necessarily  follow  that  the  legislature  might  allow 
such  an  organ  to  decide  upon  the  terms  of  a  statute,  al- 
though unless  that  power  were  grantable  the  legislature 
might  not  bestow  upon  an  administrative  organ  any 
power  over  railroad  rates  further  than  to  apply  regula- 
tions made  by  the  legislature. 

Contingent  legislation  as  to  rates. 

45.  In  view  of  the  cases  as  to  the  contingent  treatment 
of  foreign  corporations  and  the  case  sustaining  a  statute 
by  which  the  pay  of  an  officer  of  the  state  militia  in  ac- 
tive service  was  made  the  same  as  the  pay  of  an  officer 
of  corresponding  grade  in  the  United  States  army,^^^  it 
seems  that  a  state  might  make  the  local  railroad  rates  to 
depend  upon  the  rates  which  the  federal  government 
might  establish  for  interstate  transportation,  and,  con- 
versely, the  federal  government  might  make  the  inter- 
state rates  to  depend  upon  the  rates  which  the  states 
might  establish  for  local  transportation.^*^^     This  would 

101  See.  Oberholtzer,  The  Referendum  in  America,  208-217;  Cooley,  Con- 
stitutional Limitations,  7th  ed.,  168  et  seq.;  6  A.  &  E.  Enc.  of  L.,  2d  ed., 
1022.  Compare  Kadderly  v.  City  of  Portland  (1903)  44  Ore.  118,  74  Pac. 
710. 

102  See  notes  89,  90,  supra. 

103  This  does  not  mean  that  a  state  legislature  might  in  all  cases  make 
local  rates  depend  upon  the  interstate  rates  established  by  the  carriers, 
or,  conversely,  that  Congress  might  in  all  cases  make  interstate  rates  de- 


92  THE  DISTRIBUTION  OF  GOVERNMENTAL.  POWERS. 

certainly  be  true  if  we  could  be  sure  that  after  such  a  law 
was  passed  the  basic  rates  would  in  every  instance  be  es- 
tablished simply  with  a  view  to  their  effect  upon  the 
transportation  subject  to  the  sovereignty  establishing 
them  and  without  regard  to  their  effect  upon  rates  not 
subject  to  that  sovereignty.  And  it  is  questionable 
whether,  when  considering  an  alleged  delegation  of 
power,  a  court  might  inquire  into  the  motive  underlying 
the  establishment  of  the  basic  rates. 

It  may  be  conceded  that  the  federal  statute  which  pro- 
vides that  in  cases  where  they  apply  the  laws  of  the 
several  states  shall  be  regarded  by  the  federal  courts  as 
rules  of  decision  in  trials  at  common  law  ^°^  is  hardly  in 
point,  for  so  far  as  substantive  law  is  concerned  Congress 
could  not  constitutionally  have  provided  otherwise.^  °° 
And  hardly  analogous  is  the  federal  statute  which  pro- 
vides that  in  places  which  have  been  ceded  by  a  state  to 
the  United  States  the  punishment  of  offenses  not  specially 
provided  for  by  any  law  of  the  United  States  shall  be  the 
same  as  that  which  at  the  time  of  the  enactment  of  the 
federal  statute  was  provided  for  by  the  law  of  the  state 
which  ceded  the  place  where  the  offense  was  commit- 
ted,^"^^  or  the  federal  statute  which  provides  that  in  com- 
mon law  causes  the  circuit  and  district  courts  shall  en- 

pend  upon  local  rates  established  by  the  carriers.  The  commerce  clause 
would  at  times  affect  such  legislation.  The  question  is  discussed  in  note  47 
in  Chapter  1,  supra. 

104  Rev.  Stats,  sec.  721;  4  Fed.  Stats.  An.  517;  Rose,  Code  of  Federal 
Procedure,  sec.  12. 

105  See  Patterson,  The  United  States  and  the  States  Under  the  Consti- 
tution, 2d  ed.,  sec.  109;  Rose,  Code  of  Federal  Procedure,  sees.  10,  notes 
a,  r,  799,  note  c.  And  those  laws  must  also  be  so  regarded  in  trials  in 
chancery. 

106  Rev.  Stats,  sec.  5391;  Act  July  7,  1898,  c.  576,  30  U.  S.  Stats,  at  L. 
717.  See  Franklin  v.  United  States  (1910)  216  U.  S.  559,  30  Sup.  Ct.  434, 
54  L.  ed.  615. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  93 

force  such  remedies  upon  judgments  as  were  at  the  time 
the  statute  was  enacted  provided  by  the  laws  of  the  states 
within  which  those  courts  are  held  and  such  remedies  upon 
judgments  as  were  or  may  be  subsequently  provided  by 
state  laws  and  adopted  by  general  rules  of  those 
courts.^  °'^  Nor  is  that  statute  analogous  which  provides 
that  in  civil  causes  other  than  equity  and  admiralty 
causes  those  courts  shall  follow  as  nearly  as  may  be  the 
procedure  in  the  courts  of  record  of  the  states  within 
which  such  circuit  and  district  courts  are  held,  any  nile 
of  court  to  the  contrary  notwithstanding.^^^  The  latter 
statute,  which,  if  it  were  interpreted  in  accordance  with 
its  probable  meaning,  would  allow  the  state  authorities 
incidentally  to  change  the  procedure  in  federal  courts, ^*^^ 
might  possibly  be  sustained  upon  the  ground  upon  which 
were  sustained  the  less  sweeping  earlier  statutes  which 
merely  adopted  the  procedure  then  followed  by  state 
courts  and  authorized  the  federal  courts  to  alter  and  add 

107  Rev.  Stats.,  sec.  916;  4  Fed.  Stats.  An.  580;  Rose,  Code  of  Federal 
Procedure,  sec.  925;  Fink  v.  O'Neil  (1882)  106  U.  S.  272,  1  Sup.  Ct.  325, 
27  L,  ed.  196;  Ex  parte  Boyd  (1882)  105  U.  S.  647,  651,  26  L.  ed.  1200; 
Ross  V.  Duval  (1839)  13  Pet.  45,  10  L.  ed.  51;  Wayman  v.  Southard  (1825) 
10  Wheat.  1,  6  L.  ed.  253;  Bank  of  the  United  States  v.  Halstead  (1825)  10 
Wheat.  51,  6  L.  ed.  264.  In  spite  of  the  decisions  and  the  language  of  Mar- 
shall, C.  J.,  in  Wayman  v.  Southard,  10  Wheat,  at  49,  50,  6  L.  ed.  at  264,  it 
does  not  seem  clear  that,  in  a  case  in  which  the  jurisdiction  is  based  upon 
the  diverse  citizenship  of  the  parties,  a  federal  court  may  constitutionally 
ignore  a  tlien-existing  state  law,  for  example,  as  to  stays  of  execution  or 
exemptions  from  execution,  if  the  state  is  not  seeking  to  thwart  the  fed- 
eral remedy  by  allowing  a  special  stay  or  exemption  to  such  defendant  or 
defendants.  See  also  Rev.  Stats.,  sec.  915;  4  Fed.  Stats.  An.  577;  Rose, 
Code  of  Federal  Procedure,  sec.  905. 

108  Rev.  Stats.,  sec.  914;  4  Fed.  Stats.  An.  563;  Rose,  Code  of  Federal 
Procedure,  sec.  900. — Consider  also  2  Am.  Pol.  Sci.  Rev.  364. 

109  Not,  however,  of  course,  where  the  federal  courts  would  thereby  be 
required  to  act  contrary  to  the  Federal  Constitution  or  a  federal  statute: 
see  Slocum  v.  New  Y.  L.  I.  Co.  (1913)  228  U.  S.  364,  33  Sup.  Ct.  523,  57  L. 
ed.  879;  Rose,  Code  of  Federal  Procedure,  sec.  900,  note  f. 


94  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

to  such  rules:  "^  the  Supreme  Court  said  that  the  pro- 
viding of  such  rules  was  not  an  act  exclusively  legislative 
in  character  and  might  be  entrusted  to  the  courts  con- 
cerned."^ The  statute  under  consideration,  however,  has 
been  so  interpreted  by  the  Supreme  Court  as  to  make  it 
unnecessary  for  federal  courts  to  follow  the  procedure  in 
the  courts  of  record  of  the  states  within  which  the  fed- 
eral courts  are  held.^^^ 

But  while  the  determination  of  the  principles  upon 
which  rates  shall  be  regulated  is  exclusively  legislative 
in  its  character,  and  might  not  be  entrusted  by  the  state 
legislatures  to  Congress  or  by  Congress  to  the  state  legis- 
latures, it  seems  that  a  legislative  body  would  not  be  dele- 
gating its  power  if  it  provided  that  rates  which  were  sub- 
ject to  it  should  be  affected  as  the  merely  incidental  re- 
sult of  regulation  bj'  the  legislature  of  another  sover- 
eignty of  rates  which  were  subject  to  regulation  by  that 
other  body. 

Grants  of  discretion. 

46.  The  courts  have  also  at  times  sustained  legislation 
which  granted  discretion  to  administrative  organs.  Where 

110  Rose,  Code  of  Federal  Procedure,  sec.  900,  notes  a,  aa. 

Ill,  Of  course,  it  does  not  necessarily  follow  that,  because  the  legislature 
may  entrust  a  power  to  the  organ  concerned,  the  legislature  may  entrust 
that  power  to  a  third  authority.  Still,  so  far  at  least  as  regards  cases  in 
which  federal  courts  acquire  jurisdiction  by  reason  of  the  diverse  citizenship 
of  the  parties,  the  statutes  under  consideration  obviously  carry  out  the  pur- 
pose for  which  jurisdiction  was  granted  to  the  federal  courts  far  better  than 
would  any  statutes  which  established  uniform  rules  of  procedure  and  uni- 
form remedies  upon  judgments  throughout  the  entire  country. 

112  See  Boston  &  M.  R.  v.  Gokey  (1908)  210  U.  S.  155,  28  Sup.  Ct.  657,  52 
L.  ed.  1002;  case  there  cited;  Rose,  Code  of  Federal  Procedure,  sec.  805,  be- 
ginning of  note  b,  sec.  900,  note  g;  Hills  &  Co.  v.  Hoover  (1911)  220  U.  S. 
329,  31  Sup.  Ct.  402,  55  L.  ed.  485.  Rev.  Stats.,  sec.  914,  was  taken  from 
a  statute  enacted  much  later  tlian  that  from  which  Rev.  Stats.,  sec.  918, 


DELEGATION  OF  POWER   BY   LEGISLATURE.  95 

the  discretion  granted  was  not  great  ^^^  the  decisions  are 
probably  correct,  for  the  legislature  cannot  be  expected 
to  determine  every  unimportant  question  which  may 
arise.  But  other  decisions  which  sustain  larger  grants 
of  discretion  ^  ^^  can  be  supported  only  on  the  assumption 

was  taken,  and  the  courts,  in  interpreting  the  Revised  Statutes,  ought  to 
give  weight  to  that  fact.  See  note  at  4  Fed.  Stats.  An.  585  on  the  opera- 
tion of  sec.  914. 

113  See,  e.  g..  State  v.  McCarty  ( 1912)  5  Ala.  Ap.  212,  226,  228,  59  So.  543, 
547,  548;  Blue  v.  Smith  (1911)  69  W.  Va.  761,  72  S.  E.  1038;  Lee  v. 
Marsh  (1911)  230  Pa.  351,  79  Atl.  564;  State  v.  Wagener  (1899)  77  Minn. 
483,  80  N.  W.  633,  46  L.  R.  A.  442;  In  re  KoUock  (1897)  165  U.  S.  526,  17 
Sup.  Ct.  444,  41  L.  ed.  813;  language  used  in  Waynian  v.  Southard  (1825) 
10  Wheat.  1,  43,  6  L.  ed.  253,  262,  263,  quoted  in  note  80,  supra;  10  Wheat. 
45,  46,  6  L.  ed.  263;  Jermyn  v.  Fowler  (1898)  186  Pa.  595,  40  Atl.  972, 
where  one  of  the  two  inconsistent  positions  taken  by  the  court  was  that  the 
board  might  be  granted  a  discretion  as  to  matters  of  detail;  and  also  Inter- 
state Com.  Comn.  v.  Goodrich  T.  Co.  (1912)  224  U.  S.  194,  32  Sup.  Ct.  436, 
56  L.  ed.  729;  Scott  v.  Marley  (1911)  124  Tenn.  388,  137  S.  W.  492;  State 
v.  Frear  (1911)  146  Wis.  291,  131  N.  W.  832,  34  L.  R.  A.  N.  S.  480;  Mer- 
chants Exchange  v.  Knott  (1908)  212  Mo.  616,  111  S.  W.  565;  St.  Louis,  I. 
M.  &  S.  Ry.  Co.  V.  Neal  (1906)  83  Ark.  591,  98  S.  W.  958,  961  (affirmed 
on  this  point  in  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor  ( 1908)  210  U.  S.  281, 
287,  26  Sup.  Ct.  616,  617,  52  L.  ed.  1061)  ;  State  v.  Bryan  (1905)  50  Fla. 
293,  369,  370,  39  So.  929,  953;  Woodruff  v.  New  Y.  &  N.  E.  R.  Co.  (1890) 
59  Conn.  63,  84,  20  Atl.  17,  19;  Gregory  v.  Kansas  City  (1912)  244  Mo.  523, 
149  S.  W.  466;  In  re  Opinion  of  Justices  (1907)  74  N.  H.  606,  68  Atl.  873; 
Morton  v.  Pusey  (1908)  237  111.  26,  86  N.  E.  601.  Possibly  United  States 
v.  Grimaud  (1911)  216  U.  S.  614,  30  Sup.  Ct.  576,  54  L.  ed.  639;  Light  v. 
United  States  (1911)  220  U.  S.  523,  31  Sup.  Ct.  485,  55  L.  ed.  570;  Colo- 
rado &  S.  Ry.  Co.  v.  State  R.  Comn.  (1913)  54  Colo.  64,  129  Pac. 
506;  Clendaniel  v.  Conrad  (1912)  25  Del.,  83  Atl.  1036,  1051;  State 
V.  Corvallis  &  E.  R.  Co.  (1911)  59  Ore.  450,  117  Pac.  980;  Blais  v. 
Franklin  (1910)  31  R.  I.  95,  77  Atl.  172;  People  v.  Dunn  (1889)  80  CaL 
211,  22  Pac.  140;  Donnelly  v.  United  States  (1913)  228  U.  S.  243,  256,  33 
Sup.  Ct.  449,  452,  57  L.  ed.  820,  come  under  this  head.  It  seems  that  State 
v.  Sherow  (1912)  87  Kan.  235,  123  Pac.  866,  should  be  supported  rather 
upon  the  ground  that  the  power  granted  was  one  of  local  self-government. 
With  the  cases  in  this  note  compare  Fite  v.  State  (1905)  114  Tenn.  646,  658, 
659,  88  S.  W.  941,  944,  1  L.  R.  A.  X.  S.  520,  525;  Central  of  Ga.  Ry.  Co.  v. 
Railroad  Comn.  (1908)  161  Fed.  925,  985;  other  cases  cited  in  note  29,  su- 
pra; and  State  v.  Burdge  (1897)  95  Wis.  390,  70  N.  W.  347,  37  L.  R.  A. 
157;  State  v.  Holland   (1908)   37  Mont.  393,  96  Pac.  719. 

114  Brady  v.  Mattern   (1904)    125  Iowa,  158,  100  N.  W.  358.     (The  court 


96  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

that  the  legislature  may  delegate  legislative  power  upon 
important  subjects  which  it  may  specify;  and  in  still  other 
cases  (among  them  the  oft-cited  Ohio  case  in  which  the 
court  sustained  a  statute  allowing  the  people  of  the  re- 
spective counties  to  decide  whether  or  not  county  bonds 
should  be  issued  in  aid  of  railroad  construction)  ^^^  while 

overlooks  the  insurance  commissioner  cases,  cited  in  note  29,  supra,  and  it 
cites  Rj'an  v.  Outagamie  County  (1891)  80  Wis.  336,  50  N.  W.  340,  although 
the  reason  given  for  the  Wisconsin  decision  is  flatly  in  conflict  with  that 
on  which  the  Iowa  decision  is  based.  The  opinion  in  the  Iowa  railroad  com- 
mission case,  which  is  one  of  the  two  commission  cases  cited,  does  not  men- 
tion the  question  of  delegation  of  legislative  power.)  State  v.  Preferred  T. 
M.  Co.  (1904)  184  Mo.  160,  82  S.  W.  1075.  (The  court  says  that  in  an 
earlier  Missouri  case  an  act  requiring  a  uniform  policy  of  insurance,  to  be 
approved  by  the  Superintendent  of  Insurance,  was  held  to  be  constitutional, 
although  in  that  case  the  court  did  not  hold  that  the  act  was  constitutional; 
it  cites  an  insurance  company  case  which  has  nothing  to  do  with  the  ques- 
tion; and  it  cites  a  case  upholding  the  validity  of  an  ordinance  which  pro- 
vided for  the  licensing  of  engineers.)  The  decisions  in  Louisville  &  N.  R. 
Co.  V.  Interstate  Com.  Comn.  (1910)  184  Fed.  118,  122;  Kingman  et  al..  Pe- 
titioners (1891)  153  Mass.  566,  27  N.  E.  778,  12  L.  R.  A.  417  (compare 
State  V.  Hudson  Co.  Ave.  Comrs.  (1874)  37  N.  J.  L.  12,  19;  the  Massachu- 
setts case  was  followed  in  later  cases  in  the  same  state,  cited  in  L.  R.  A. 
Cases  as  Authorities);  Martin  v.  Witherspoon  (1882)  135  Mass.  175  (no 
authorities  cited;  compare  Board  of  Harbor  Comrs.  v.  Excelsior  R,  Co. 
(1891)  88  Cal.  491,  26  Pac.  375)  ;  Ingram  v.  State  (1864)  39  Ala.  247  (no 
authorities  cited);  In  re  Senate  Bill  (1889)  12  Colo.  188,  21  Pac.  481 
(where,  however,  it  does  not  appear  that  the  general  question  of  delegation 
of  legislative  power  was  considered),  are  also  unsound.  The  constitutional- 
ity of  the  acts  considered  in  Zuber  v.  Southern  Ry.  Co.  (1911)  9  Ga.  App. 
539,  71  S.  E.  937;  Arnett  v.  State  (1907)  168  Ind.  180,  80  N.  E.  153,  8  L. 
R.  A.  N.  S.  1192;  State  v.  Missouri  P.  Ry.  Co.  (1907)  76  Kan.  407,  92  Pac. 
606;  State  v.  Barringer  (1892)  110  N.  C.  525,  14  S.  E.  781;  People  v.  Dunn 
(1889)  80  Cal.  211,  22  Pac.  140,  is  not  clear.  See  also  State  v.  Great  N. 
Ry.  Co.  (1912)  68  Wash.  257,  123  Pac.  8;  Schaake  v.  Dolley  (1911)  85  Kan. 
598,  118  Pac.  80;  City  of  Centralia  v.  Smith  (1903)  103  Mo.  App.  438,  77 
S.  W.  488.  Compare  In  re  County  Comrs.  (1908)  22  Okla.  435,  98  Pac. 
557;  Central  of  Ga.  Ry.  Co.  v.  Railroad  Comn.  (1908)  161  Fed.  925,  985,  in 
the  latter  of  which  the  court  declared  unconstitutional  a  state  law  in  which 
an  attempt  was  made  to  confer  upon  a  commission  a  large  amount  of  dis- 
cretion as  to  rates. 

115  See  note  99,  supra.  The  decision  in  Picton  v.  Cass  County  (1904)  13 
N.  D.  242,  100  N.  W.  711,  is  sound,  but  the  reason  given  for  it  is  not,  unless 
the  fact  that  the  resources  of  the  state  were  involved  constitutes  an  excep- 


DELEGATION   OF  POWER   BY   LEGISLATURE.  97 

the  decisions  are  doubtless  sound  the  reasoning  upon 
which  those  decisions  are  based  can  be  supported  only 
upon  the  same  assumption. 

If,  where  an  administrative  organ  received  large  grants 
of  discretion,  it  adopted  principles  sufficient  to  afford  it 
complete  guidance  and  announced  those  principles  as 
publicly  and  as  formally  as  laws  are  announced,  it  would 
be  clear  to  most  persons  that  that  organ  was  exercising 
power  which  is  strictly  legislative.  And  where  the  rea- 
sons for  administrative  decisions  are  not  announced  in 

tional  circumstance.  The  same  reason  had  been  improperly  given  in  a  niim- 
ber  of  cases  cited  in  that  opinion.    In  State  v.  Hagood  (1888)   30  S.  C.  519, 

9  S.  E.  686,  3  L.  R.  A.  841,  where  a  statute  provided  that  licenses  to  mine 
within  the  public  domain  might  be  granted  or  refused  by  the  Board  of  Ag- 
riculture according  to  its  judgment  as  to  the  best  interests  of  the  state,  the 
court  refused  the  petition  of  a  mining  company  for  a  mandamus  compelling 
the  board  to  grant  a  license;  and  in  United  States  v.  Williams  (1887)  6 
Mont.  379,  12  Pac.  851,  where  an  act  of  Congi-ess  provided  that  timber 
growing  on  the  public  lands  might  be  cut  subject  to  such  regulations  as  the 
Secretary  of  the  Interior  might  prescribe  for  the  protection  of  the  under- 
growth "and  for  other  purposes,"  the  court  sustained  an  action  for  the 
value  of  timber  cut  in  violation  of  law.  In  each  case  the  court  said  that 
legislative  power  was  not  delegated  to  administrative  oflficers.  It  seems 
that  that  reason  was  unsound,  and  that  the  courts  should,  instead,  have 
said  merely  that  the  absence  of  valid  statutes  did  not  warrant  the  appro- 
priation of  public  property  by  individuals.  See  also  United  States  v.  Gri- 
maud  (1911)  220  U.  S.  506,  31  Sup.  Ct.  480,  55  L.  ed.  563  (1910)  216  U.  S. 
614,  30  Sup.  Ct.  576,  55  L.  ed.  639;  Light  v.  United  States  (1911)  220  U.  S. 
523,  31  Sup.  Ct.  485,  55  L.  ed.  570;  Payne  &  Butler  v.  Providence  G.  Co. 
(1910)  31  R.  I.  295,  77  Atl.  145.— In  several  cases,  e.  g..  People  v.  Grand 
T.  W.  Ry.  Co.  (1908)  232  111.  292,  298,  83  N.  E.  839,  842;  Chicago,  B.  &  Q. 
R.  Co.  V.  Jones  (1894)  149  111.  361,  378,  37  N.  E.  247,  251,  24  L.  R.  A.  141, 
145;  and  see  cases  there  cited  and  United  States  v.  Grimaud  (1911)  220  U. 
S.  506,  517,  31  Sup.  Ct.  480,  483,  55  L.  ed.  563;  Wayman  v.  Southard  (1825) 

10  Wheat.  1,  43,  6  L.  ed.  253;  the  courts  have  said  that  a  legislature  "may 
authorize  others  to  do  those  things  which  it  might  properly,  yet  cannot  un- 
derstandingly  or  advantageously,  do  itself."  Undoubtedly  a  legislature  may 
delegate  to  others  some  powers  which  it  might  rightfully  exercise  itself.  But 
the  statement,  which  is  worthless  as  a  test  of  constitutionality,  cannot  prop- 
erly mean  that  where  a  legislature  cannot  advantageously  enact  specific 
regulations  it  may  empower  others  to  make  such  regulations  without  the 
guidance  of  legislatively-established  principles. 


98  THE  DISTRIBUTION  OF  GOVEENMENTAL  POWERS. 

advance  or  where  that  organ  does  not  decide  in  advance 
upon  any  guiding  principles  whatever  its  determinations 
are  fully  as  legislative  in  their  nature.^ ^"^  The  fact  that  no 
act  legislative  in  character  preceded  its  determinations 
in  specific  cases  cannot  make  those  determinations  valid. 
The  legislature  alone  has  power  to  change  the  require- 
ments of  the  government  as  to  the  conduct  of  individuals ; 
and  while  the  legislature,  though  it  may  state  its  require- 
ments in  specific  form,  need  not  do  so,  but  may  entrust 
that  power  to  an  administrative  organ  if  the  legislature 
itself  ordains  the  principles  from  which  those  specific 
rules  may  be  deduced,  an  administrative  organ  would  ex- 
ercise legislative  power  if  it  enforced  rules  which  were 
not  based  upon  principles  established  by  the  legislature 
or  if  it  interfered  with  the  conduct  of  individuals  without 
the  previous  establishment  of  any  rule  whatever. 

Possible  differences  in  extent  and  character  of  regulation. 

47.  Of  course,  if  there  were  only  one  degree  and  char- 
acter of  rate  regulation  which  a  legislature  might  consti- 
tutionally ordain,  it  would  be  sufficient  for  the  legislature 
simply  to  create  a  commission  and  empower  it  to  name 
specific  rates.  Further  directions  would  be  unnecessary. 
But  it  is  obvious  that  there  are  constitutionally  possible 

116  Where  no  uniform  rules  are  adopted  the  danger  of  injustice  is,  of 
course,  far  greater  than  when  they  are  adopted.  The  administrative  organ 
may  act  not  merely  at  haphazard  but  with  partiality,  and  the  opportunity  to 
work  injustice  through  partiality  gives  to  persons  who  may  be  unscrupulous 
a  means  of  keeping  themselves  in  misused  power.  The  danger  is  a  real 
one.  It  would  be  far  easier  for  that  organ  to  act  with  dishonest  motives 
than  it  would  be  to  prove  such  motives  so  clearly  as  to  warrant  a  court  in 
restraining  the  action  upon  that  ground.  And  if  the  opportunity  to  work 
such  injustice  might  constitutionally  be  given  to  an  adrainistratve  organ, 
no  assumption  by  the  judiciary  of  an  unrestrained  veto-power — which  is 
not  granted  to  the  judiciary  by  the  constitutions — would  be  sufficient  to 
prevent  such  an  evil. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  99 

regulations  of  rates  which  differ  in  extent  and  character. 
The  legislature  may  seek  merely  to  prevent  manifestly 
extortionate  or  manifestly  discriminatory  charges;  or  it 
may,  within  broad  constitutional  limits,  go  further  and, 
disregarding  the  question  whether  the  rates  and  the  rela- 
tions between  rates  which  have  been  fixed  by  the  carriers 
are  manifestly  improper  in  themselves,  it  may  command 
that  the  rates  and  the  relations  between  rates  be  made  to 
conform  to  principles  of  public  policy  laid  down  by  the 
legislature."^    And,  of  course,  in  deciding  upon  the  policy 

117  As  Mr.  Victor  Morawetz  said  before  the  Senate  Committee  on  Inter- 
state Commerce  on  April  18,  1905,  "The  expressions  'reasonable  rates'  and 
'unreasonable  rates'  are  often  used  in  very  different  senses.  Thus,  when  it 
is  said  that  a  rate  shall  be  reasonable,  this  may  mean  ( 1 )  that  the  rate 
shall  not  be  unreasonably  high  and  illegal  under  the  common  law  and  the 
interstate  commerce  act,  or  (2)  that  the  rate  shall  not  be  unreasonably  low 
in  the  sense  of  being  confiscatory,  or  (3)  that  the  rate  shall  be  the  particu- 
lar rate  which,  in  the  opinion  of  a  commission  or  of  some  particular  per- 
son, ought  to  be  established  between  these  two  extremes."  "There  is  a  wide 
range  between  a  rate  that  is  unreasonably  high,  and  therefore  illegal  as 
against  the  shipper,  and  a  rate  that  is  so  low  as  to  be  confiscatory  as 
against  the  carrier.  For  example:  assuming  that  a  railway  company  may 
charge  40  cents  a  hundred  pounds  for  carrying  a  given  article  between  two 
points  without  making  the  rate  unreasonably  high  and  therefore  illegal,  it 
is  quite  possible  that  this  rate  might  be  reduced  by  legislative  action  to, 
say,  30  cents  a  hundred  pounds  without  violating  any  constitutional  right 
of  the  carrier.  In  this  case  the  maximum  rate  which  would  be  reasonable 
and  which  could  be  imposed  by  the  carrier  upon  the  shipper  would  be  40 
cents  a  hundred  pounds,  and  the  minimum  rate  which  could  be  imposed  by 
the  legislature  on  the  railway  company  would  be  30  cents  a  hundred 
pounds."  See  also  Morawetz,  The  Power  of  Congress  to  Regulate  Railway 
Rates,  18  Harv.  L.  Rev.  572,  579.  As  the  legislature  may  prohibit  rates 
which  are  extortionate  and  may  prescribe  rates  which  are  not  confiscatory, 
there  is  no  reason  whatever  to  doubt  that  the  legislature  may  itself  fix  rates 
anywhere  between  those  extremes,  and  that  it  may  authorize  a  commission 
to  fix  rates  at  any  point  between  those  extremes  if  the  legislature  declares 
what  that  point  shall  be.- — The  opinion  in  Trustees  v.  Saratoga  G.,  E.  L.  & 
P.  Co.  (1908)  191  N.  Y.  123,  146,  147,  83  N.  E.  693,  700,  18  L.  R.  A.  N.  S. 
713,  does  not  call  for  serious  consideration.  At  that  point  the  court  ap- 
parently overlooked  the  fact  that  a  legislature  may  itself  name  specific 
rates,  and  it  is  not  clear  that  the  court  realized  that  the  word  "reasonable" 
is  used  in  more  than  one  sense.    And  in  Interstate  C.  S.  Ry.  Co.  v.  Common- 


100        THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

to  be  followed  and  in  settling  the  claims  of  conflicting  in- 
terests, there  are  abundant  opportunities  for  differences 
of  opinion  and  there  are  at  least  several  possible  solutions 
of  the  questions  at  issue.  For  the  problems  involved  in 
rate  regulation  are  complicated  and  important.  A  legis- 
lature, in  deciding  upon  principles  of  regulation,  may  af- 
fect economic  conditions  within  the  territory  subject  to  it 
at  least  as  greatly  as  they  could  be  affected  by  any  possi- 
ble changes  in  the  federal  tariff.^^^  Since,  therefore,  there 
is  a  wide  range  of  possible  differences  in  the  extent  and 
character  of  regulations,  it  necessarily  follows  that,  un- 

wealth  (1907)  207  U.  S.  79,  86,  28  Sup.  Ct.  26,  27,  .52  L.  ed.  Ill,  Holmes, 
J.,  apparently  did  not  give  sufficient  consideration  to  the  use  of  the  word 
"reasonable."     On  that  point  he  spoke  only  for  himself. 

118  For  example,  a  change  in  the  relation  between  the  rates  charged  on 
carload  lots  and  those  charged  on  less  than  carload  lots  may  cause  the 
building  up  of  a  jobbing  business  or  may  cause  the  following  of  different 
methods  of  distribution;  a  change  in  the  relation  between  raw  and  manu- 
factured products,  as  between  grain  and  Hour  or  live  stock  and  dressed 
meat,  may  cause  a  shifting  in  the  location  of  a  manufacturing  industry; 
a  change  in  the  relation  between  products  which  can  at  times  be  substi- 
tuted for  each  other,  as  between  the  various  kinds  of  building  materials  or 
the  various  kinds  of  food  stuffs,  may  seriously  affect  the  producers;  and  a 
change  in  the  relation  between  different  termini  may  cause  the  decay  of  one 
community  and  the  upbuilding  of  another.  A  change  of  rate  upon  one  road 
may  be  important  mainly  because  of  the  change  in  relation  to  rates  charged 
by  another  road  which  carries  products  from  a  competing  source  of  supplies 
or  to  a  competing  market  in  a  different  part  of  the  country.  Of  course, 
where  the  rates  imposed  by  the  government  are  merely  maximvmi  and  not 
absolute  the  carrier  may  be  able  to  allow  the  relation  between  the  rates  ac- 
tually charged  to  remain  the  same.  But  any  change  in  the  relation  between 
rates  does  affect  economic  conditions  and  may  affect  them  seriously. — 
And  even  when  no  question  of  the  relation  between  rates  is  involved,  a 
change  in  rates  may  have  a  serious  effect  upon  the  producers  as  well  as 
upon  the  railroad  and  upon  the  consumers.  Passing  over  the  more  obvious 
illustrations — a  reduction  in  the  rates  chargeable  may  make  it  necessary 
for  the  carrier  to  reduce  its  operating  expenses,  delaying  transportation  in 
each  case  until  there  accumulates  an  amount  of  freight  nearer  to  the  maxi- 
mum hauling  capacity  of  its  engines,  in  that  way  giving  to  the  large  pro- 
ducer or  the  producer  at  a  large  shipping  centre  an  advantage  over  a  com- 
petitor who  produces  less  or  who  is  less  favorably  situated. 


DELEGATION  OF  POWER   BY   LEGISLATURE.  101 

less  legislative  power  may  be  delegated,  when  the  legisla- 
ture entrusts  to  a  commission  the  power  of  naming  speci- 
fic rates  it  must  state  definitely  what  principles  are  to  be 
made  effective  by  that  commission. 

Do  the  statutes  establish  definite  principles? 

48.  Some  of  the  courts  which  have  sustained  statutes 
authorizing  commissions  to  name  railroad  rates  have 
thought,  more  or  less  clearly,  that  in  those  statutes  the 
legislatures  had  declared  what  the  law  should  be  and  had 
left  to  the  commissions  merely  the  enforcement  of  legis- 
lation. We  have  gathered  together  the  cases  in  which  the 
courts  took  that  position  and  have  shown  the  provisions 
of  the  statutes  there  involved.^^^  But  none  of  those  courts 
realized  that  important  differences  in  rate  regulation  are 
constitutionally  possible.^^^  Consequently,  of  course, 
none  of  those  courts  sufficiently  considered  the  question 
whether  in  the  statute  before  it  the  legislature  had  actu- 
ally established  definite  principles  for  the  guidance  of  the 
commission  in  naming  specific  rates.  And  for  that  reason 
it  cannot  be  said  that  that  question  has  been  finally  set- 
tled as  to  any  of  those  statutory  provisions.^^^ 

It  is  possible,  in  view  of  the  context  in  some  of  the  stat- 
utes, that  the  term  ''reasonable  rates"  is  used  to  denote 
rates  which  mark  the  border  beyond  which  charges  by  the 

119  See  note  37,  supra. 

120  See,  however,  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn. 
(1908)  1.36  Wis.  146,  163,  164,  116  N.  W.  905,  911,  17  L.  R.  A.  N.  S.  821, 
830. 

121  See,  however,  case  cited  in  note  30,  supra,  where  a  railroad  commis- 
sion statute  was  declared  unconstitutional  upon  the  ground  that  it  sought 
to  delegate  legislative  power.  On  the  other  hand,  see  Louisville  &  N.  R.  Co. 
V.  Interstate  Com.  Comn.  (1910)  184  Fed.  118,  where  "reasonable"  is  used 
in  two  senses,  and  where  the  court  takes  very  loose  views  (p.  122)  as  to  the 
necessity  for  the  legislative  establishment  of  guiding  principles. 


102         THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

carrier  would  be  extortionate,  and  while  there  may  be 
some  doubt  as  to  just  what  would  constitute  an  extortion- 
ate charge,  it  seems  that  a  grant  of  power  to  name  such 
rates  would  not  be  so  indefinite  as  to  be  unconstitutional. 
But  the  statutes  do  not  appear  to  use  the  word  ''reason- 
able" in  any  other  sense  which  is  so  definite  that,  if  in- 
terpreted in  that  way,  a  grant  of  power  to  name  *  *  reason- 
able rates"  would  be  constitutional.  It  is  true  that  some 
courts  have,  by  way  of  false  analogy,  applied  the  term 
''reasonable"  to  rates  which  were  not  so  low  as  to  be 
confiscatory;  yet  we  cannot  say  that  the  statutes  in  em- 
powering the  naming  of  "reasonable  rates"  intended  to 
direct  that  the  rates  should  be  made  as  low  as  would  be 
constitutional.  And  no  one  who  is  acquainted  with  rail- 
road transportation  would  assert  that,  on  principle,  be- 
tween the  extremes  of  extortion  and  confiscation  there 
can  be  only  one  rate  which  is  justifiable.^^- 

While,  however,  a  grant  of  the  power  to  name  ' '  reason- 
able rates"  is  constitutional  if  that  term  is  used  by  the 
legislature  to  enunciate  a  definite  principle  in  accordance 
with  which  the  commission  must  act,  yet  when  that  term 
is  inextricably  bound  up  with  other  terms  which  are  in- 
definite the  entire  clause  seems  to  be  unconstitutional. 
This  is  true  in  the  case  of  the  Interstate  Commerce  Act. 
And  we  have  there  not  only  the  language  of  the  statute 
itself  but  also  the  interpretation  which  the  commission 
has  placed  upon  such  language  to  show  that  Congress  has 
attempted  to  confer  upon  the  commission  a  discretion 
which  is  so  broad  that  the  provision  cannot  be  upheld 

122  As  Mr.  Victor  Morawetz  said  before  the  Senate  Committee  on  Inter- 
state Commerce  on  April  18,  1905,  "It  is  rarely,  if  ever,  true  that  there  is 
but  one  just  and  reasonable  rate  for  the  transportation  of  a  given  article 
between  two  points.  In  nearly  every  instance  there  is  a  wide  range  within 
which  any  rate  would  be  just  and  reasonable."     See  also  note  117,  supra. 


DELEGATION  OF  POWER  BY  LEGISLATURE.  103 

upon  any  ground  whicli  is  not  flatly  inconsistent  with  the 
rule  that  legislative  power  may  not  be  delegated. 

We  have,  for  instance,  the  statement  of  the  commission 
itself  that  ''every  case  before  the  commission,  however 
trivial  it  may  appear,  involves  in  its  disposition  the  form- 
ulation of  principles  under  the  law  which  have  impor- 
tant bearing  upon  the  business  of  carriers  and  the  com- 
merce, not  only  of  the  immediate  locality,  but  often  of  the 
entire  countrj^ ' '  ^^^    And  while  Congress  may  not  have 

123  Sixth  Annual  Report  (1892)  p.  12.  This  statement  was  repeated  in 
its  Seventh  Annual  Report  (1893)  p.  13,  the  commission  also  saying  that 
"what  may  sometimes  appear  to  be  unnecessary  delay  in  the  disposition  of 
matters  before  the  commission  is  really  the  taking  of  time  to  consider  the 
effect  of  a  ruling  upon  the  whole  situation  and  beyond  that  which  might  be 
just  as  between  only  the  parties  to  the  record."  And  in  its  Ninth  Annual 
Report  (1895)  p.  59,  the  commission  said,  "To  some  extent  the  principles 
upon  which  taxation  rests  must  be  allowed  in  fixing  a  just  rate;  to  some 
extent  the  result  of  the  rate  upon  the  development  of  industries  must  be 
taken  into  the  account  in  all  decisions  which  the  commission  is  called  upon 
to  make;  to  some  extent  every  question  of  transportation  involves  moral 
and  social  considerations,  so  that  a  just  rate  cannot  be  determined  inde- 
pendently of  the  theory  of  social  progress."  See  also  Fourth  Annual  Re- 
port (1890)  p.  6;  Texas  &  P.  Ry.  Co.  v.  Interstate  Com.  Comn.  (1896)  162 
U.  S.  197,  234,  16  Sup.  Ct.  666,  681,  40  L.  ed.  940.  Commissioner  Prouty 
said  in  the  American  Monthly  Review  of  Reviews  for  May,  1906,  p.  595, 
"Now  the  fixing  of  a  railway  rate  is  in  its  nature  legislative  rather  than 

judicial.     There  is  no  standard  by  which  it  can  be  determined 

In  determining  the  justice  or  reasonableness  of  a  particular  rate  all  these 
factors,  and  many  others,  may  present  themselves  for  consideration.  They 
are  properly  taken  into  account  by  the  trafiic  official  who  fixes  the  rate  in 
the  first  instance,  and  they  must  be  considered  by  the  administrative  body 
which  revises  that  rate.  It  is  finally  a  question  of  judgment  what,  taking 
everything  into  account,  ought  fairly  to  be  done."  In  the  same  article  he 
declared,  p.  596,  "It  exercises  precisely  the  same  administrative  function  in 
correcting  as  does  the  trafiic  official  in  establishing"  rates,  with  the  qualifi- 
cation that  the  commission  considers  more  than  the  interests  of  the  carrier. 
In  connection  with  that  declaration  should  be  read  his  statement  in  the 
same  magazine  for  July,  1906,  p.  65,  "The  making  of  a  railway  rate  rests  in 
the  judgment  of  the  trafiic  official.  Within  very  wide  limits  that  official 
could  not  demonstrate  by  any  legal  standard  and  legal  evidence  that  his 
rate  was  right;  neither  could  the  shipper  demonstrate  by  the  same  methods 
that  it  was  wrong."     Compare  the  end  of  section  40,  supra. 


104         THE  DISTRIBUTION  OF  GOVERNIVIENTAI,  POWERS. 

realized  the  indefiniteness  of  its  grant  of  power,  it  is  true 
that  a  consistent  application  of  the  law  involves  the  form- 
ulation of  important  principles  which  may  affect  fourteen 
billion  dollars'  worth  of  railroad  property;  which  may 
affect  one  and  a  half  million  workmen  and  their  families 
who  are  directly  dependent  upon  railroad  earnings;  and 
which  may  affect  seriously  every  industry  and  every  sec- 
tion of  the  country .^2^  And  it  involves  the  fomiulation  of 
those  principles  by  an  administrative  body  and  not  by 
Congress. 

If  a  legislative  body  may  constitutionally  grant  such  a 
broad  discretion  to  a  railroad  commission,  where  must  it 
stop  ?  May  not  Congress  delegate  to  a  commission  similar 
power  over  the  tariff  or  over  taxation  in  general?  May 
not  the  state  legislatures  delegate  to  commissions  similar 
power  over  the  criminal  laws  ?  May  not  the  power  which 
is  granted  to  seven  men  or  five  or  three  be  granted  to  one 
man,^^'**  and  not  upon  one  subject  only,  but  upon  every 
subject  which  now  comes  before  the  legislatures?^-^ 

124  That  the  grant  of  power  has  such  a  scope  seems  clear  notwithstanding 
Southern  P.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  433,  31  Sup.  Ct. 
288,  55  L.  ed.  283;  Interstate  Com.  Comn.  v.  Northern  P.  Ry.  Co.  ( 1910)  216 
U.  S.  538,  30  Sup.  Ct.  301,  54  L.  ed.  608;  Interstate  Com.  Comn.  v.  Chicago 
G.  W.  Ry.  Co.  (1908)  209  U.  S.  108,  28  Sup.  Ct.  493,  52  L.  ed.  705.  And  see 
Interstate  Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  32  Sup.  Ct. 
108,  56  L.  ed.  308.    Compare  sec.  51,  infra. 

124a  Indeed,  the  President  can  now  control  the  decisions  of  the  Interstate 
Commerce  Commission,  for  its  members  are  removable  at  his  pleasure:  see 
section   11  of  the  Act. 

125  As  was  said  by  Mr.  E.  B,  Whitney  in  31  Am.  L.  Reg.  186,  "Many  cases 
could  be  put  in  which  the  ruling  party  could,  for  a  considerable  time,  per- 
petuate its  power  in  a  situation  like  that  of  the  second  session  of  the  Fifty- 
first  Congress.  President,  Senate  and  House  of  Representatives  then  be- 
longed to  the  same  political  party,  and  liad  it  in  their  power  to  make  the 
laws.  They  knew  that  on  the  fourth  day  of  March  then  next  ensuing  the 
opposition  would  obtain  control  of  one  branch  of  Congress,  so  that 
for  two  years  party  legislation  would  be  impossible.  If  a  Congress 
has  an  unlimited  right  of  delegation,  a  series  of  acts  could  easily,  and  might 


EXTENT  OF  POWER  OF  COURTS.  105 

EXTENT  OF  POWER  OF  COURTS. 

General  principles. 

49.  A  court  decides  in  specific  instances  whether  par- 
ticular persons  who  are  before  it  have  complied  with  the 
law  of  the  land  or  are  complying  with  that  law,  and  if 
they  have  not  complied  with  that  law  or  are  not  comply- 
ing with  it,  the  court  awards  against  such  persons  de- 
crees of  compliance,  reparation  or  punishment.  Such  is 
the  extent  of  its  duty  and  of  its  power.  It  cannot  make 
the  law;  ^^^  it  cannot  change  the  law;^^^  and  it  cannot 
refuse  to  recognize  changes  in  the  law  which  have  been 
made  by  the  appropriate  authorities  unless  such  changes 
violate  the  constitution.^^^  A  rule  of  law  may  be  abol- 
ished and  the  duty  to  apply  a  new  rule  of  law  may  be  im- 
posed upon  the  court. 

in  the  future,  perhaps,  not  improbably,  be  passed,  which  should  secure  to 
the  President  the  right  of  legislation  during  those  two  years,  while  the  en- 
suing Congress  would  simply  and  easily,  by  the  ordinary  parliamentary 
processes,  be  stifled  in  a  deadlock.  Thus  the  power  to  delegate  involves 
the  power  to  create  a  limited  dictatorship." — See  also  discussion  in  U.  of  Pa. 
L.  Rev.,  Oct.,  1908,  p.   101. 

i26Prentis  v.  Atlantic  C.  L.  Co.  (1908)  211  U.  S.  210,  226,  29  Sup.  Ct.  67, 
69,  53  L.  ed.  150;  United  States  v.  Evans  (1909)  213  U.  S.  297,  29  Sup.  Ct. 
507,  53  L.  ed.  803;  Express  Cases  (1886)  117  U.  S.  1,  29,  6  Sup.  Ct.  542, 
628,  556,  29  L.  ed.  791;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co. 
(1884)  110  U.  S.  607,  686,  4  Sup.  Ct.  185,  194,  28  L.  ed.  291;  Road  Imp. 
Dist.  v.  Glover  (1909)  89  Ark.  513,  117  S.  W.  544;  notes  129,  139,  141,  infra. 
Compare  Kansas  v.  Colorado  (1907)  206  U.  S.  46,  27  Sup.  Ct.  655,  51  L. 
ed.  950  (commented  on  in  Trickett,  The  Newest  Neologism  of  the  Supreme 
Court,  41  Am.  L.  Rev.  729;  note  in  21  Harv.  L.  Rev.  47)  ;  6  A.  &  E.  Enc.  of 
L.,  2d  ed.,  p.  1033;  Pound,  Common  Law  and  Legislation,  21  Harv.  L.  Rev. 
383;  Judge-made  Law,  35  Nat.  Corp.  Rep.  613;  Hornblower,  A  Century  of 
"Judge-made"  Law,  7  Col.  L.  Rev.  453;  Dicey,  Law  and  Opinion  in  Eng- 
land, 359,  481;  Pollock,  Essays  in  Jurisprudence  and  Ethics,  237;  Dicey, 
The  Law  of  the  Constitution,  7th  ed.,  58;  Rand,  Swift  v.  Tyson  Versus 
Gelpcke  v.  Dubuque,  8  Harv.  L.  Rev.  328. 

127  See  note  126,  supra. 

128  See  note  16,  supra. 


106         THE  DISTKIBUnON  OF  GOVERNMENTAL  POWERS. 

Distinction  between  judicial  and  legislative  power  over 
rates. 

50.  These  principles  are  abundantly  supported  by  the 
weight  of  authority,  and  they  unquestionably  apply  in  the 
case  of  rate  regulation.  Indeed,  they  have  been  applied 
by  the  Supreme  Court  to  problems  of  rate  regulation  in 
language  almost  as  definite  as  that  which  has  been  used  in 
the  text.^2^  It  is  true  that  there  are  expressions  in  some 
opinions  which  assert  the  existence  of  more  power  in  the 
courts  and  of  less  power  in  the  legislatures  and  it  is  true 
that  in  other  instances  the  court  has  failed  to  recognize 
the  existence  of  some  powers  which  may  be  entrusted  to 
the  courts.  There  may  be  found  in  the  opinions  a  number 
of  expressions  which  are  inconsistent  with  the  statements 
which  have  just  been  made;  and  those  expressions  have 
in  several  instances  confused  those  who  subsequently  en- 
acted state  legislation;  ^^°  but  such  expressions  are  not  in 
accord  with  the  weight  of  authority. 

Thus,  the  court  has  asserted  that  the  common  law  rule 
as  to  the  validity  of  rates  for  transportation  remained  in 
force  in  spite  of  legislation  and  that  the  court  had  power 
to  declare  invalid  rates  established  by  the  legislature  or 
under  its  authority  if  the  rates  so  established  did  not  com- 

129  "A  judicial  inquiry  investigates,  declares  and  enforces  liabilities  as 
they  stand  on  present  or  past  facts  and  under  laws  supposed  already  to 
exist.  That  is  its  purpose  and  end.  Legislation  on  the  other  hand  looks  to 
the  future  and  changes  existing  conditions  by  making  a  new  rule  to  be  ap- 
plied thereafter  to  all  or  some  part  of  those  subject  to  its  power.  The  estab- 
lishment of  a  rate  is  the  making  of  a  rule  for  the  future,  and  therefore  is 
an  act  legislative  and  not  judicial  in  kind:"  Prentis  v.  Atlantic  C.  L.  Co. 
(1908)  211  U.  S.  210,  226,  29  Sup.  Ct.  67,  69,  53  L.  ed.  150.  See  also  other 
cases  cited  in  note  19,  supra;  and  Muskrat  v.  United  States  (1911)  219  U. 
S.  346,  31  Sup.  Ct.  250,  55  L.  ed.  246. 

130  See,  for  example,  the  statutes  considered  in  State  v.  Johnson  (1900) 
61  Kan.  803,  60  Pac.  1068,  49  L.  R.  A.  662;  Western  U.  T.  Co.  v.  Myatt 
(1899)  98  Fed.  335;  Prentis  v.  Atlantic  C.  L.  Co.  (1908)  211  U.  S.  210,  29 
Sup.  Ct.  67,  53  L.  ed.  150. 


EXTENT  OF  POWER  OF  COURTS.  107 

ply  with  the  common  law.^^^  In  other  words,  in  some 
cases  the  court  has  gone  beyond  an  assertion  of  power  to 
refuse  to  enforce  legislation  which  it  considers  unconsti- 
tutional, and  it  has  measured  the  boundaries  of  the  judi- 
cial power  by  the  fact  that  courts  once  enforced  particu- 
lar rules  of  substantive  law.  But  we  have  already  con- 
sidered this  position  in  another  part  of  the  present  chap- 
ter ^^-  and  we  have  seen  that  the  position  is  clearly  un- 
sound. The  legislature  may  unquestionably  make 
changes  in  the  common  law. 

It  is  also  true  that  the  court  has  said  that  ''It  is  one 
thing  to  inquire  whether  the  rates  which  have  been 
charged  and  collected  are  reasonable— that  is  a  judicial 
act;  but  an  entirely  different  thing  to  prescribe  rates 
which  shall  be  charged  in  the  future— that  is  a  legislative 
act."  ^^^  And  yet  it  is  clear  that  the  court  in  so  saying 
was  not  felicitous  in  expressing  the  distinction  between 
judicial  and  legislative  acts.  The  court  should  have  said, 
as  it  has  said  in  later  cases,^^^  that  it  is  the  distinction 
between  applying  an  existing  rule  of  law  and  adopting  a 
new  and  possibly  different  rule  of  law  for  relations  which 
may  exist  in  the  future.  The  decision  of  the  question 
whether  the  law  has  been  complied  with  is,  of  course,  a 
judicial  act.^^^  On  the  other  hand,  the  legislature  may 
change  the  law,  or  it  may  state  prospectively  ^^'^  what 

131  See  latter  part  of  note  16,  supra. 

132  See  sec.  33,  supra. 

133  Interstate  Com.  Comn.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (1897)  167 
U.  S.  479,  499,  17  Sup.  Ct.  896,  900,  42  L.  ed.  243. 

134  See  cases  in  note  19,  supra. 

135  Interstate  Com.  Comn.  v.  Brimson  (1894)  154  U.  S.  447,  485,  14  Sup. 
Ct.  1125,  1136,  38  L.  ed.  1047;  concurring  opinion  in  Winchester  &  S.  R. 
Co.  V.  Commonwealth  (1906)  106  Va.  264,  281,  55  S.  E.  692,  698;  Barrett 
V.  Indiana  (1913)  229  U.  S.  26,  30,  33  Sup.  Ct.  692,  693,  57  L.  ed.  1050. 
Compare  discussion  in  Louisville  &  IST.  R.  Co.  v.  Shiler  (1911)   186  Fed.  176. 

136  Yet   on   the  validity  of  retroactive   laws  see  Johannessen   v.  United 


108         THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

would  be  a  sufficient  compliance  with  the  existing  law,  or 
it  may  authorize  an  administrative  body  to  state  the  law 
prospectively  if  the  legislature  has  laid  down  sufficient 
rules  for  the  guidance  of  the  administrative  body. 

But  while  the  legislature  has  power  to  change  the  law 
and  to  prescribe  the  rates  which  shall  be  charged  in  the 
future,  and  while  the  courts  have  not  the  power  to  change 
the  law,  judicial  acts  are  not  always  strictly  retrospec- 
tive, for  as  a  general  rule  a  court  may  require  the  observ- 
ance in  the  future  of  the  law  as  it  stands  at  the  present 
time.^^"^  This  may  be  done  in  a  proceeding  for  a  man- 
damus or  an  injunction.^  ^^ 

states  (1912)  225  U.  S.  227,  32  Sup.  Ct.  613,  56  L.  ed.  1066;  Kentucky  U. 
Co.  V.  Commonwealth  of  Kentucky  (1911)  219  U.  S.  140,  152,  153,  31  Sup. 
Ct.  171,  177,  55  L.  ed.  137,  and  cases  there  cited;  Black,  Constitutional 
Law,  3d  ed.,  752  et  seq.;  In  re  Coburn  (1913)  Cal.,  131  Pac.  352,  355,  356; 
State  Comn.  in  Lunacy  v.  Welch  (1913)  Cal.,  129  Pac.  974.  Compare  Green- 
ough  V.  Greenough  (1849)  11  Pa.  St.  494;  Swigart  v.  Baker  (1913)  229  U. 
S.  187,  33  Sup.  Ct.  645,  57  L.  ed.   1143. 

137  In  Janvrin,  Petitioner  (1899)  174  Mass.  514,  517,  47  L.  R.  A.  319, 
321,  sub  nom.  Janvrin  v.  Revere  W.  Co.,  55  N.  E.  381,  382,  where  the  court 
was  asked  to  establish  the  rate  to  be  charged  for  water,  the  court  said,  by 
Holmes,  C.  J.,  that  the  statute  "does  not  undertake  merely  to  make  of  the 
court  a  commission  to  determine  what  rule  shall  govern  people  who  are  not 
yet  in  relation  to  each  other,  and  who  may  elect  to  enter  or  not  to  enter  into 
relations  as  they  may  or  may  not  like  the  rule  which  we  lay  down:  it  calls 
on  us  to  fix  the  extent  of  actually  existing  rights.  With  regard  to  such  rights 
judicial  determinations  are  not  confined  to  the  past.  If  it  legitimately  might 
be  left  to  this  court  to  decide  whether  a  bill  for  water  furnished  was  reason- 
able, and,  if  not,  to  cut  it  down  to  a  reasonable  sum,  it  equally  may  be  left 
to  the  court  to  enjoin  a  company  from  charging  more  than  a  reasonable  sum 
in  the  immediate  future."  See  also  Bitterman  v.  Louisville  &  N.  R.  Co. 
(1907)  207  U.  S.  205,  228,  229,  28  Sup.  Ct.  91,  100,  52  L.  ed.  171;  West  Vir- 
ginia N.  R.  Co.  V.  United  States  (1904)  134  Fed.  198;  Tift  v.  Southern  Ry. 
Co.  (1903)  123  Fed.  789  (1905)  138  Fed.  753,  affirmed  Southern  Ry.  Co.  v. 
Tift  (1907)  206  U.  S.  428,  27  Sup.  Ct.  709,  51  L.  ed.  1124;  Packet  Co.  v. 
Catlettsburg  (1881)  105  U.  S.  559,  565,  26  L.  ed.  1169;  Montezuma  C.  Co. 
V.  Smithville  C.  Co.  (1910)  218  U.  S.  .371,  31  Sup.  Ct.  67,  54  L.  ed.  1074; 
M.  C.  Kiser  Co.  v.  Central  of  Ga.  Ry.  Co.  ( 1907 )  158  Fed.  193 ;  Interstate 
Com.  Comn.  v.  Chicago,  B.  &  Q.  R.  Co.  (1899)  94  Fed.  272,  98  Fed.  173; 
Tyrone  G.  &  W.  Co.  v.  Burley  (1902)  19  Pa.  Super.  348,  354;  Central  I.  W. 


EXTENT  OF  POWER  OF  COURTS.  109 

Yet,  of  course,  a  court  may  so  act  only  in  specific  cases 
wherein  all  of  the  essential  parties  have  been  before  it,^^^ 
and  only  in  cases  in  which  the  court  possesses  jurisdic- 
tion. ^^^  Thus  it  does  not  follow  that  where  the  Supreme 
Court  has  declared  a  state  regulation  unconstitutional  the 
Supreme  Court  may  go  further  and  declare  what  regula- 
tions would  be  constitutional;  "^  the  statute  may  pre- 
scribe a  method  of  enforcement  which  withdraws  some 
questions  from  the  determination  of  the  courts;  ^^^  and  it 

V.  Pennsylvania  R.  Co.  (1895)  17  Pa.  Co.  Ct.  651,  5  Pa.  Dist.  247;  Menaeho 
V.  Ward  (1886)  27  Fed.  529;  Southern  Ex.  Co.  v.  Memphis  &  L.  R.  R.  Co. 
(1881)  8  Fed.  799  (of  which  the  case  last  cited  was  overruled  on  another 
ground  in  Express  Cases  (1886)  117  U.  S.  1,  6  Sup.  Ct.  542,  29  L.  ed.  791)  ; 
S  L.  R.  A.  N.  S.  529 ;  and  note  138,  infra.  Compare  Gulf  C.  Co.  v.  Harris 
(1908)  158  Ala.  343,  354,  48  So.  477,  481,  24  L.  R.  A.  N.  S.  399,  403,  404; 
Colorado  T.  Co.  v.  Wilmore   (1913)   Colo.,  129  Pac.  204;  note  146,  infra. 

138  See  cases  in  note  137,  supra,  and  also  Cen.  Dig.,  Injunction,  sec.  141; 
Cen.  Dig.,  Mandamus,  sec.  269;  Dec.  Dig.,  Mandamus,  sec.  134;  Dec.  Dig., 
Carriers,  sees.  18  (6),  201;  Dec.  Dig.,  Street  Railroads,  sec.  57  (6)  ;  Dec. 
Dig.,  Telegraphs  and  Telephones,  sec.  33   ( 1 ) . 

139  Brymer  v.  Butler  Water  Co.  (1897)  179  Pa.  231,  36  Atl.  249,  36  L.  R. 
A.  260;  State  v.  Johnson  (1900)  61  Kan.  803,  60  Pac.  1068,  49  L.  R.  A. 
662;  and  see  Salt  R.  V.  C.  Co.  v.  Nelssen  (1906)  10  Ariz.  9,  85  Pac.  117,  12 
L.  R.  A.  N.  S.  711;  San  Diego  L.  &  T.  Co.  v.  Jasper  (1903)  189  U.  S.  439, 
440,  23  Sup.  Ct.  571,  47  L.  ed.  892;  Muskrat  v.  United  States  (1911)  219 
U.  S.  346,  31  Sup.  Ct.  250,  55  L.  ed.  246;  note  in  8  L.  R.  A.  N.  S.  529;  Pen- 
sacola  &  A.  R.  Co.  v.  State  ( 1889)  25  Fla.  310,  5  So.  833,  3  L.  R.  A.  661,  37 
A.  &  E.  R.  Cas.  579.  Compare  Montezuma  C.  Co.  v.  Smithville  C.  Co. 
(1910)    218  U.  S.  371,  31  Sup.  Ct.  67,  54  L.  ed.  1074. 

140  See,  e.  g.,  Missouri  P.  Ry.  Co.  v.  United  States  (1903)  189  U.  S.  274, 
23  Sup.  Ct.  507,  47  L.  ed.  811;  Capital  C.  G.  Co.  v.  City  of  Des  Moines 
(1896)  72  Fed.  818,  822;  and  also  Brown  on  Jurisdiction,  chap.  2. 

141  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  400,  14  Sup.  Ct. 
1047,  1055,  38  L.  ed.  1014.  And  see  Lanning  v.  Osborne  (1896)  76  Fed.  319, 
336;  Montana,  W.  &  S.  R.  Co.  v.  Morley  (1912)  198  Fed.  991,  1008;  Tram- 
mell  V.  Dinsmore  (1900)  102  Fed.  794;  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Tompkins  (1898)  90  Fed.  363,  365;  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co. 
V.  Railroad  Comn.  (1908)  136  Wis.  146,  116  N.  W.  905,  17  L.  R.  A.  N.  S. 
821. 

142  See  sec.  51,  infra,  and,  by  way  of  analogy,  note  28  in  Chap.  1,  supra; 
and  also  Morrisdale  C.  Co.  v.  Pennsylvania  R.  Co.  (1913)  230  U.  S.  304,  33 
Sup.  Ct.  938,  57  L.  ed.  1494;  Proctor  &  Gamble  Co.  v.  United  States  (1912) 


110         THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

is  also  quite  conceivable  that  a  law  might  be  so  indefi- 
nite as  to  be  incapable  of  enforcement, ^^^  or  surrender  to 
the  courts  such  broad  power  to  say  what  the  law  should 
be  as  to  be  unconstitutional  as  delegating  legislative 
power  to  the  courts.^^^ 

Judicial  review   of  administrative   orders   establishing 
rates. 

51.  As  we  have  already  seen,  the  courts  have  in  the  ab- 
sence of  statute  a  very  limited  power  to  state  in  specific 
form  the  rates  which  may  be  charged  for  future  transpor- 
tation. So  also  it  seems  clear  that  the  legislature  may 
grant  to  a  court  the  power  to  name  such  rates  in  cases 
wherein  all  of  the  essential  parties  are  before  the  court. 
And  it  has  been  held  that  the  legislature  may  provide 
that  the  decisions  of  a  commission  shall  constitute  merely 
prima  facie  evidence  as  to  what  rates  will  comply  with  the 

225  U.  S.  282,  32  Sup.  Ct.  761,  56  L.  ed.  1091;  Hooker  v.  Knapp  (1912) 
225  U.  S.  302,  32  Sup.  Ct.  769,  56  L.  ed.  1099;  Texas  &  P.  Ry.  Co.  v.  Abi- 
lene C.  O.  Co.  (1907)  204  U.  S.  426,  27  Sup.  Ct.  350,  51  L.  ed.  553;  Osborne 
V.  San  Diego  L.  &  T.  Co.  ( 1900)  178  U.  S.  22,  20  Sup.  Ct.  860,  44  L.  ed.  961 ; 
Baltimore  &  0.  R.  Co.  v.  United  States  ex  rel.  Pitcairn  C.  Co.  (1910)  215 
U.  S.  481,  30  Sup.  Ct.  164,  54  L.  ed.  292;  Honolulu  R.  T.  &  L.  Co.  v.  Hawaii 
(1908)  211  U.  S.  282,  29  Sup.  Ct.  55,  53  L.  ed.  186;  Atlantic  C.  L.  R.  Co.  v. 
Macon  G.  Co.  (1909)  166  Fed.  206;  Meeker  v.  Lehigh  V.  R.  Co.  (1908)  162 
Fed.  354;  Erie  R.  Co.  v.  Wenaque  L.  Co.  (1908)  75  N.  J.  L.  878,  69  Atl. 
168;  Nebraska  T.  Co.  v.  State  (1898)  55  Neb.  627,  76  N.  W.  171,  45  L.  R. 
A.  113;  People's  G.  L.  &  C.  Co.  v.  Hale  (1901)  94  111.  App.  406,  424;  Brown 
on  Jurisdiction,  chap.  2. 

143  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  of  Tennessee  (1884)  19  Fed. 
679,  692,  693;  Louisville  &  N.  R.  Co.  v.  Commonwealth  (1896)  99  Ky.  132, 
35  S.  W.  129,  33  L.  R.  A.  209;  State  v.  Texas  &  N.  0.  R.  Co.  (1907)  Tex. 
Civ.  App.,  103  S.  W.  653;  State  of  Louisiana  v.  Gaster  (1893)  45  La.  Ann. 
636,  12  So.  739.  Compare  Nash  v.  United  States  (1913)  229  U.  S.  373,  33 
Sup.  Ct.  780,  57  L.  ed.  1232;  Ohio  v.  Dollison  (1904)  194  U.  S.  445,  24  Sup. 
Ct.  703,  48  L.  ed.  1062;   Freund,  Police  Power,  p.  25. 

144  See  cases  cited  in  8  Cyc.  835  and  cumulative  supplement  thereto. 
Compare  Standard  Oil  Co.  v.  United  States  (1911)  221  U.  S.  1,  69,  31  Sup. 
Ct.  502,  519,  55  L.  ed.  619. 


EXTENT  OF  POWER  OF  COURTS.  Ill 

principles  laid  down  by  the  legislature  and  may  subject 
those  decisions  to  review  by  the  courts,  both  on  the  law 
and  the  facts,^^^  in  so  far  as  relates  to  the  application  of 
those  decisions  to  parties  who  are  then  before  the  court.^^^ 
But  the  legislature  may  go  further  than  this.  It  may 
establish  general  principles,  authorize  a  commission  to 
state  in  a  more  specific  form  the  law  so  laid  down,  and  re- 
quire the  courts  to  enforce  those  more  specific  statements 
of  the  law,  declaring  that  the  orders  of  the  commission 
shall  be  final  unless  beyond  the  power  which  it  may  con- 
stitutionally exercise,  or  beyond  its  statutory  authority, 
or  based  upon  a  mistake  of  law.^*'^    In  considering  the 

145  See  note  33,  supra;  Proctor  &  Gamble  Co.  v.  United  States  (1912) 
225  U.  S.  282,  297,  32  Sup.  Ct.  761,  767,  56  L.  ed.  1091;  Interstate  Com. 
Comn.  V.  Alabama  M.  Ry.  Co.  (1897)  168  U.  S.  144,  18  Sup.  Ct.  45,  42  L. 
ed.  414;  United  States  v.  Duell  (1899)  172  U.  S.  576,  19  Sup.  Ct.  286,  43  L. 
ed.  559;  Tift  v.  Southern  Ry.  Co.  (1905)  138  Fed.  753.  Compare  Chicago, 
I.  &  L.  Ry.  Co.  V.  Railroad  Comn.  (1911)  175  Ind.  630,  644,  645,  95  N.  E. 
364,  369. 

146  But  as  to  power  of  court  to  establish  schedules  of  rates  for  the  gen- 
eral public  see  cases  in  note  139,  supra;  Steenerson  v.  Great  N.  Ry.  Co. 

(1897)  69  Minn.  353,  375,  72  N.  W.  713,  716;  State  ex  rel.  Sheets  v.  Toledo 
H.  T.  Co.   (1905)   72  Ohio  St.  60,  74  N.  E.  162;  Nebraska  T.  Co.  v.  State 

(1898)  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113;  Southern  P.  Co.  v. 
Colorado  F.  &  I.  Co.  (1900)  101  Fed.  779;  McNulty  v.  Brooklyn  H.  R.  Co. 
(1900)  66  N.  Y.  Supp.  57;  People  ex  rel.  Central  P.,  N.  &  E.  R.  Co.  v.  Will- 
cox  (1909)  194  N.  Y.  383,  87  N.  E.  517;  Western  U.  T.  Co.  v.  Myatt  (1899) 
98  Fed.  335;  8  L.  R.  A.  N.  S.  529.  Compare  Railroad  Comn.  v.  Weld  & 
Neville  (1903)  96  Tex.  394,  73  S.  W.  529;  Railroad  Comn.  v.  Houston  &  T. 
C.  R.  Co.  (1897)  90  Tex.  340,  38  S.  W.  750. 

147  See  Interstate  Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541, 
547,  32  Sup.  Ct.  108,  111,  56  L.  ed.  308;  Interstate  Com.  Comn.  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  30  Sup.  Ct.  651,  54  L.  ed.  946;  and 
also  Long  I.  W.  S.  Co.  v.  Brooklyn  (1897)  166  U.  S.  685,  695,  17  Sup.  Ct. 
718,  722,  41  L.  ed.  1165;  Noyes,  American  Railroad  Rates,  250;  Prouty, 
Court  Review  of  the  Orders  of  the  Interstate  Commerce  Commission,  18  Yale 
L.  J.  297,  300;  note  in  Wigmore  on  Evidence,  V,  p.  127;  citations  at  end 
of  note  16,  supra;  section  117,  infra.  Compare  Interstate  Com.  Comn.  v. 
Louisville  &  N.  R.  Co.  (1913)  227  U.  S.  88,  33  Sup.  Ct.  185,  57  L.  ed.  431; 
Southern  P.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  433,  31  Sup.  Ct. 
288,  55  L.  ed.  283;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Railroad  Comn.  (1909)  102 
Tex.  338,  116  S.  W,  795. 


112         THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 

subject  of  orders  of  the  commission  for  the  purpose  of  en- 
forcing or  restraining  their  enforcement,  the  court  may 
be  confined  by  statutory  operation  to  determining 
whether  there  have  been  violations  of  the  constitution,  a 
want  of  conformity  to  statutory  authority,  or  to  ascer- 
taining whether  power  has  been  so  arbitrarily  exercised 
as  virtually  to  transcend  the  authority  conferred,  al- 
though it  may  not  be  technically  doing  so.^"*^ 

It  is  true  that  questions  of  fact  may  be  involved  in  the 
determination  of  questions  of  law,  so  that  an  order  reg- 
ular on  its  face  may  be  set  aside  if  it  appears  that  the 
rate  is  so  low  as  to  be  confiscatory  and  in  violation  of  the 
constitutional  prohibition  against  taking  property  with- 
out due  process  of  law ;  or  if  the  commission  acted  so  arbi- 
trarily and  unjustly  as  to  fix  rates  contrary  to  evidence  or 
without  evidence  to  support  it;  or  if  the  authority  therein 
involved  has  been  exercised  in  such  an  unreasonable  man- 
ner as  to  cause  it  to  be  within  the  elementary  rule  that 
the  substance,  and  not  the  shadow,  determines  the  valid- 
ity of  the  exercise  of  the  power.^^^  But  "in  determining 
these  mixed  questions  of  law  and  fact  the  couii;  confines 
itself  to  the  ultimate  question  as  to  whether  the  commis- 
sion acted  within  its  power.  It  will  not  consider  the  ex- 
pediency or  wisdom  of  the  order,  or  whether,  on  like  tes- 

148  Proctor  &  Gamble  Co.  v.  United  States  (1912)  225  U.  S.  282,  297, 
298,  32  Sup.  Ct.  7G1,  767,  56  L.  ed.  1091;  Interstate  Com.  Comn.  v.  Union  P. 
R.  Co.  (1912)  222  U.  S.  541,  32  Sup.  Ct.  108,  56  L.  ed.  308;  Interstate  Com. 
Comn.  V.  Illinois  C.  R.  Co.  (1910)  215  U.  S.  452,  30  Sup.  Ct.  155,  54  L.  ed. 
280;  Florida  E.  C.  Ry.  Co.  v.  United  States  (1912)  200  Fed.  797,  802;  Chi- 
cago, I.  &  L.  Ry.  Co.  V.  Railroad  Comn.  (1911)  175  Ind.  630,  644,  645,  95  N. 
E.  364,  369;  Kansas  C.  S.  Ry.  Co.  v.  United  States  (1913)  204  Fed.  641, 
644,  645. 

149  Interstate  Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  547, 
32  Sup.  Ct.  108,  111,  56  L.  ed.  308;  cases  there  cited;  Interstate  Com.  Comn. 
V.  Louisville  &  N.  R.  Co.  (1913)  227  U.  S.  88,  33  Sup.  Ct.  185,  57  L.  ed.  431; 
Stickney  v.  Interstate  Com.  Comn.  (1908)  164  Fed.  638.  Compare  Noyes, 
American  Railroad  Rates,  250. 


EXTENT  OF  POWER  OF  COURTS.  113 

timony,  it  would  have  made  a  similar  ruling."  The  con- 
clusion of  the  commission  "is  subject  to  review,  but  when 
supported  by  evidence  is  accepted  as  final;  not  that  its 
decision,  involving  as  it  does  so  manj^  and  such  vast  pub- 
lic interests,  can  be  supported  by  a  mere  scintilla  of  proof 
—but  the  courts  will  not  examine  the  facts  further  than 
to  determine  whether  there  was  substantial  evidence  to 
support  the  order.  "^^*^ 

By  way  of  caution  it  may  be  added  that  the  question 
whether  the  order  of  a  commission  is  in  excess  of  statu- 
tory authority  is  a  question  for  the  federal  courts  only 
when  it  deals  with  the  federal  commission  or  when,  deal- 
ing with  a  state  commission,  it  arises  in  a  federal  court 
in  a  case  in  which  the  court  has  obtained  jurisdiction  on 
some  other  ground,  such  as  the  diverse  citizenship  of 
the  parties.^^^ 

150  Interstate  Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  547, 
548,  32  Sup.  Ct.  108,  111,  56  L.  ed.  308.  See  also  Interstate  Com.  Comn. 
V.  Delaware,  L.  &  W.  R.  Co.  (1911)  220  U.  S.  235,  31  Sup.  Ct.  392,  55  L.  ed. 
448;  Southern  P.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  433,  31 
Sup.  Ct.  288,  55  L.  ed.  283;  Illinois  C.  R.  Co.  v.  Interstate  Com.  Comn. 
(1907)  206  U.  S.  441,  27  Sup.  Ct.  700,  51  L.  ed.  123;  Cincinnati,  H.  &  D. 
Ry.  Co.  V.  Interstate  Com.  Comn.  (1907)  206  U.  S.  142,  27  Sup.  Ct.  648, 
51  L.  ed.  995;  Zakonaite  v.  Wolf  (1912)  226  U.  S.  272,  33  Sup.  Ct.  31,  57 
L.  ed.  218;  People  v.  New  York  State  Board  (1905)  199  U.  S.  48,  52,  25 
Sup.  Ct.  713,  715,  50  L.  ed.  79;  Bates  &  Guild  Co.  v.  Payne  (1904)  194  U. 
S.  106,  24  Sup.  Ct.  595,  48  L.  ed.  894;  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.  V.  Railroad  Comn.  (1908)  136  Wis.  146,  116  N.  W.  905,  17  L.  R.  A.  N. 
S.  821.  Compare  United  States  v.  Baltimore  &  O.  S.  W.  R.  Co.  (1912)  226 
U.  S.  14,  20,  33  Sup.  Ct.  5,  6,  57  L.  ed.  104. 

151  See  notes  45  to  47  in  Chapter  3,  infra.  On  the  finality  of  decisions  of 
state  courts  on  questions  of  fact  see  Thomas  v.  Texas  (1909)  212  U.  S.  278, 
29  Sup.  Ct.  393,  53  L.  ed.  512,  and  notes  45,  46  in  Chapter  9,  infra.  And 
see  Southern  P.  Co.  v.  Campbell  (1913)  230  U.  S.  537,  33  Sup.  Ct.  1027,  57 
L.  ed.  1610. 


CHAPTER  ni. 

THE  DUE  PROCESS  CLAUSES— POSITION  OF  COURT 

INTRODUCTORY. 

52.  The  clauses  stated. 

53.  Clauses  relate  to  diflFerent  governments. 

54.  Presumption  that  in  other  respects  clauses  have  same  meaning. 

55.  Possible  points  of  diflFerence  are  ignored  by  the  court. 

56.  Importance  of  understanding  the  provision. 

57.  THE   "PERSONS"  PROTECTED. 

THE  ORGANS  OF  GOVERNMENT  RESTRAINED. 

58.  Fourteenth  Amendment  restrains   states   and   their   organs   of   gorern- 

ment. 

59.  Fifth  Amendment  restrains  organs  of  federal  government. 

60.  Organs  for  establishing  limitations  upon  rates. 

THE  EXTENT  OF  THE  RESTRAINT. 

61.  The  proper  scope  of  the  provision. 

62.  The  position  of  the  court. 

63.  A  suitable  procedure. 

64.  Procedure  in  establishing  limitations  upon  rates. 

65.  Procedure  in  enforcing  limitations  upon  rates. 

66.  Provision  regarded  as  a  substantive  restraint. 

67.  No  complete  general  statement  as  to  restraint. 

68.  Particular  lines  of  decision. 

69.  Detailed  application  of  rules. 

70.  Different  tests  of  constitutionality. 

INTRODUCTORY. 

The  clauses  stated. 

52.  The  constitutional  restraints  which  we  shall  con- 
sider in  this  chapter  are  the  provision  contained  in  the 
Fifth  Amendment  "nor  shall  any  person  ....  be  de- 
prived of  life,  liberty  or  property  without  due  process 
of  law"  and  the  provision  contained  in  the  Fourteenth 

114 


INTRODUCTORY.  115 

Amendment  ''nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law. ' ' 

Clauses  relate  to  different  governments. 

53.  The  Fifth  Amendment  relates  to  the  federal  gov- 
ernment ^  and  does  not  restrain  the  state  governments,^ 
while  the  Fourteenth  Amendment  relates  to  the  state  gov- 
ernments ^  and  does  not  restrain  the  federal  government.* 

1  Adair  v.  United  States  (1908)  208  U.  S.  161,  28  Sup.  Ct.  277,  52  L.  ed. 
436.  See  also  Ex  parte  Lange  (1873)  18  Wall.  163,  21  L.  ed.  872;  United 
States  V.  Lynah  (1903)  188  U.  S.  445,  23  Sup.  Ct.  349,  47  L.  ed.  539;  Mo- 
nongahela  N.  Co.  v.  United  States  (1893)  148  U.  S.  312,  13  Sup.  Ct.  622,  37 
L.  ed.  463;  Garfield  v.  Goldsby  (1908)  211  U.  S.  249,  29  Sup.  Ct.  62,  53  L. 
ed.  168;  United  States  ex  rel.  Turner  v.  Fisher  (1911)  222  U.  S.  204,  32 
Sup.  Ct.  37,  56  L.  ed.  165;  Oclioa  v.  Hernandez  y  Morales  (1913)  230  U.  S. 
139,  33  Sup.  Ct.  1033,  57  L.  ed.  1427. 

2  Ensign  v.  Pennsylvania  (1913)  227  U.  S.  592,  597,  33  Sup.  Ct.  321,  322, 
57  L.  ed.  658;  Hunter  v.  Pittsburgh  (1907)  207  U.  S.  161,  176,  28  Sup.  Ct. 
40,  45,  52  L.  ed.  151;  Barrington  v.  Missouri  (1907)  205  U.  S.  483,  27  Sup. 
Ct.  582,  51  L.  ed.  890;  Howard  v.  Kentucky  (1906)  200  U.  S.  164,  26  Sup. 
Ct.  189,  50  L.  ed.  421;  Jack  v.  Kansas  (1905)  199  U.  S.  372,  26  Sup.  Ct.  73, 
50  L.  ed.  234;  Ohio  v.  Dollison  ( 1904)  194  U.  S.  445,  24  Sup.  Ct.  703,  48  L.  ed. 
1062;  Winous  P.  S.  C.  v.  Caspersen  (1904)  193  U.  S.  189,  24  Sup.  Ct.  431,  48  L. 
ed.  675;  Capital  C.  D.  Co.  v.  Ohio  ( 1902)  183  U.  S.  238,  22  Sup.  Ct.  120,  46  L. 
ed.  171;  Chapin  v.  Fye  (1900)  179  U.  S.  127,  21  Sup.  Ct.  71,  45  L.  ed.  119; 
Louisville  &  N.  R.  Co.  v.  Woodson  (1890)  134  U.  S.  614,  623,  10  Sup.  Ct. 
628,  631,  33  L.  ed.  1032.  See  also  Twining  v.  New  Jersey  (1908)  211  U.  S. 
78,  93,  29  Sup.  Ct.  14,  17,  53  L.  ed.  97;  Ughbanks  v.  Armstrong  (1908)  208 
U.  S.  481,  487,  28  Sup.  Ct.  372,  374,  52  L.  ed.  582;  Corkran  0.  &  D.  Co.  v. 
Arnaudet  (1905)  199  U.  S.  182,  193,  26  Sup.  Ct.  41,  44,  50  L.  ed.  143; 
Brown  v.  New  Jersey  (1899)  175  U.  S.  172,  20  Sup.  Ct.  77,  44  L.  ed.  119. 
Compare  the  language,  which  was  doubtless  used  thoughtlessly,  in  Cincin- 
nati, I.  &  W.  Co.  V.  Connersville  (1910)  218  U.  S.  336,  343,  31  Sup.  Ct. 
93,  94,  54  L.  ed.  1060. 

3  See  sees.  58,  74,  infra. 

4  In  view  of  the  wording  of  the  Amendment  this  point  is  clear  in  spite  of 
expressions  in  Patterson  v.  Bark  Eudora  (1903)  190  U.  S.  169,  23  Sup.  Ct. 
821,  47  L.  ed.  1002;  Plessy  v.  Ferguson  (1896)  163  U.  S.  537,  551,  16  Sup. 
Ct.  1138,  1143,  41  L.  ed.  256;  United  States  v.  Heinze  (1910)  218  U.  S.  532, 
546,  31  Sup.  Ct.  98,  102,  54  L.  ed.  1139. 


116  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Assumption  that  in  other  respects  clauses  have  same 
meaning. 

54.  In  our  discussion  af  the  clauses  we  shall  assume 
that,  standing  alone,  their  terms  have  the  same  meanings 
in  both  portions  of  the  Constitution.^  The  United  States 
Supreme  Court  makes  this  assumption  as  a  working  hy- 
pothesis; °  and,  indeed,  as  both  Amendments  are  parts  of 

5  Of  course,  other  provisions  of  tlie  Federal  Constitution  secure  to  the  in- 
dividual procedural  as  well  as  substantive  rights  against  the  federal  gov- 
ernment which  they  do  not  secure  to  him  against  state  action:  see,  e.  g., 
West  V.  Louisiana  (1904)  194  U.  S.  258,  24  Sup.  Ct.  650,  48  L.  ed.  965; 
Maxwell  v.  Dow  (1900)  176  U.  S.  581,  20  Sup.  Ct.  448,  494,  44  L.  ed,  597; 
HurtaJo  v.  California  (1884)  110  U.  S.  516,  4  Sup.  Ct.  Ill,  292,  28  L.  ed. 
232;  Walker  v.  Sauvinet  (1875)  92  U.  S.  90,  23  L.  ed.  678.  This  point  is  to 
be  considered  in  connection  with  sees.  86,  87,  infra. 

6  "The  part  of  the  Constitution  then  before  the  court  was  the  Fifth 
Amendment.  If  any  different  meaning  of  the  same  words,  as  they  are  used 
in  the  Fourteenth  Amendment,  can  be  conceived,  none  has  yet  appeared  in 
judicial  decision:"  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  100,  101, 
29  Sup.  Ct.  14,  20,  53  L.  ed.  97.  "While  we  need  not  affirm  that  in  no  in- 
stance could  a  distinction  be  taken,  ordinarily  if  an  Act  of  Congress  is 
valid  under  the  Fifth  Amendment  it  would  be  hard  to  say  that  a  state  law 
in  like  terms  was  void  under  the  Fourteenth:"  Carroll  v.  Greenwich  I.  Co. 
(1905)    199  U.  S.  401,  410,  26  Sup.  Ct.  66,  67,  50  L.  ed.  246.    "The  purpose 

of  [the  Fourteenth]  Amendment  is  to  extend  to  the  citizens  and  residents  of 
the  states  the  same  protection  against  arbitrary  state  legislation  affecting 
life,  liberty  and  property,  as  is  afforded  by  the  Fifth  Amendment  against 
similar  legislation  by  Congress:"  Tonawanda  v.  Lyon  (1901)  181  U.  S.  389, 
391,  21  Sup.  Ct.  009,  010,  45  L.  ed.  908,  quoted  approvingly  in  Hibben  v. 
Smith  (1903)  191  U.  S.  310,  325,  24  Sup.  Ct.  88,  92,  48  L.  ed.  195.  We 
"shall  proceed,  in  the  present  case,  on  the  assumption  that  the  legal  import 
of  the  phrase  'due  process  of  law'  is  the  same  in  both  Amendments.  Cer- 
tainly, it  cannot  be  supposed  that,  by  the  Fourteenth  Amendment,  it  was 
intended  to  impose  on  the  states,  when  exercising  their  powers  of  taxation, 
any  more  rigid  or  stricter  curb  than  that  imposed  on  the  federal  government, 
in  a  similar  exercise  of  power,  by  the  Fifth  .\mendnient : "  French  v.  Barber 
A.  P.  Co.  (1901)  181  U.  S.  324,  329,  21  Sup.  Ct.  625,  627,  45  L.  ed.  879.  See 
also  references  to  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  103,  104, 
24  L.  ed.  616,  and  Missouri  P.  Ry.  Co.  v.  Humes  (1885)  115  U.  S.  512,  520, 
6  Sup.  Ct.  110,  112,  29  L.  ed.  463,  on  p.  119,  infra;  Detroit  v.  Parker  (1901) 
181  U.  S.  399,  401,  21  Sup.  Ct.  624,  625,  45  L.  ed.  917;  dissenting  opinion 
in  Tonawanda  v.  Lyon  (1901)  181  U.  S.  389,  393,  21  Sup.  Ct.  609,  611,  45 
L.  ed.  908;  In  re  Kemmler  (1890)   136  U.  S.  436,  448,  10  Sup.  Ct.  930,  934, 


INTRODUCTORY.  117 

the  same  Constitution  such  a  working  hypothesis  is  not 
unnatural.'^ 

Possible  points  of  difference  are  ignored  by  the  court. 

55.  The  variations  in  the  texts  of  the  two  clauses  are 
unimportant,^  save,  of  course,  that  the  clauses  relate  to 
different  govermnents;  and  while  the  contexts  of  the 
clauses  are  unlike  ^  the  court  apparently  does  not  consider 
that  fact  important.    A  period  of  nearly  eighty  years  sep- 

34  L.  ed.  519;  Hurtado  v.  California  (1884)  110  U.  S.  516,  534,  535,  4  Sup. 
Ct.  Ill,  292,  120,  28  L.  ed.  232  (in  the  latter  two  cases,  however,  it  is  pos- 
sible that  a  distinction  is  made;  but  see  discussion  of  them  in  note  97  in 
Chapter  4,  infra)  ;  dissenting  opinion  in  Wight  v.  Davidson  (1901)  181  U. 
S.  371,  387,  21  Sup.  Ct.  61G,  622,  45  L.  ed.  900;  opinion  of  court  in  Pittman 
V.  Byars  (1908)  51  Tex.  Civ.  App.  83,  112  S.  W.  102.  Compare  Wight  v. 
Davidson  (1901)  181  U.  S.  371,  384,  21  Sup.  Ct.  616,  621,  45  L.  ed.  900, 
where  it  is  said,  "It  by  no  means  necessarily  follows  that  a  long  and  con- 
sistent construction  put  upon  the  Fifth  Amendment  .  .  .  .  is  to  be 
deemed  overruled  by  a  decision  concerning  the  operation  of  the  Fourteenth 
Amendment  as  controlling  state  legislation;"  and  French  v.  Barber  A.  P. 
Co.  (1901)  181  U.  S.  324,  328,  21  Sup.  Ct.  625,  626,  45  L.  ed.  879,  where  it  is 
said,  "While  the  language  of  those  Amendments  is  the  same,  yet  as  they 
were  engrafted  upon  the  Constitution  at  different  times  and  in  different 
circumstances  of  our  national  life,  it  may  be  that  questions  may  arise  in 
which  different  constructions  and  applications  of  their  provisions  may  be 
proper."    And  see  book  review  by  E.  A.  Corwin  in  6  Am.  Pol.  Sci.  Rev.  271. 

7  "The  Constitution  of  the  United  States,  with  the  several  Amendments 
thereof,  must  be  regarded  as  one  instrument,  all  of  whose  provisions  are  to 
be  deemed  of  equal  validity:"  Prout  v.  Starr  (1903)  188  U.  S.  537,  543,  23 
Sup.  Ct.  398,  400,  47  L.  ed.  584.  "While  the  [state]  constitution  as  it  now 
stands  is  to  be  considered  as  a  whole  as  if  enacted  at  one  time,  to  ascertain 
the  meaning  of  particular  expressions  it  may  be  necessary  to  give  attention 
to  the  circumstances  under  which  they  became  parts  of  the  instrument:" 
Thompson  v.  Kidder   (1906)   74  N.  H.  89,  91,  65  Atl.  392,  393. 

8  Neither  clause  is  expressly  addressed  to  or  confined  to  any  particular 
branch  of  government  to  which  it  relates,  so  that  it  is  difficult  to  see  from 
the  texts  that  either  relates  to  fewer  or  more  branches  of  government  than 
the  other.  So  far  as  the  texts  are  concerned,  there  are  as  strong  reasons 
for  implying  "by  aivy  organ  of  government"  in  one  provision  as  in  the  other 
— and  no  stronger  reasons. 

9  See  sees.  127,  131,  infra. 


118     DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

arated  the  adoptions  of  the  two  Amendments,  and  it  has 
been  said  that  for  that  reason  "it  may  be  that  questions 
may  arise  in  which  different  constructions  and  applica- 
tions of  their  provisions  may  be  proper";  ^°  but  the  court 
does  not  seek  to  interpret  either  clause  from  the  stand- 
point of  the  time  of  its  adoption.^  ^ 

Importance  of  understanding  the  provision. 

56.  The  importance  of  a  correct  understanding  of  the 
clauses  is  unquestionable.  More  decisions  of  the  United 
States  Supreme  Court  turn  upon  the  due  process  require- 

10  French  v.  Barber  A.  P.  Co.  (1901)  181  U.  S.  324,  328,  21  Sup.  Ct.  625, 
626,  45  L.  ed.  879,  quoted  at  end  of  note  6,  supra. 

11  Yet  see  United  States  v.  Burr  (1807)  4  Cranch,  469,  470,  2  L.  ed.  684; 
Schick  V.  United  States  (1904)  195  U.  S.  65,  69,  24  Sup.  Ct.  826,  827,  49  L. 
ed.  99;  Robertson  v.  Baldwin  (1897)  165  U.  S.  275,  281,  17  Sup.  Ct.  326, 
329,  41  L.  ed.  715;  Latimer  v.  United  States  (1912)  223  U.  S.  501,  504,  32 
Sup.  Ct.  242,  56  L.  ed.  526;  United  States  v.  Baruch  (1912)  223  U.  S.  191, 
199,  32  Sup.  Ct.  306,  309,  56  L.  ed.  399;  Standard  Oil  Co.  v.  United  States 
(1911)  221  U.  S.  1,  59,  31  Sup.  Ct.  502,  515,  55  L.  ed.  619,  on  the  duty  of  de- 
termining whether  terms  had  established  meanings  when  used  and,  if  so,  of 
applying  them  in  accordance  with  those  meanings.  Consider  also  Sand  F. 
Corp.  V.  Cowardin  (1909)  213  U.  S.  360,  364,  29  Sup.  Ct.  509,  510,  53  L.  ed. 
833;  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  602,  20  Sup.  Ct.  448,  494,  456, 
44  L.  ed.  597;  Standard  Oil  Co.  v.  United  States  (1911)  221  U.  S.  1,  50, 
31  Sup.  Ct.  502,  512,  55  L.  ed.  619;  Pittman  v.  Byars  (1908)  51  Tex.  Civ. 
App.  83,  112  S.  W.  102;  discussion  in  section  83,  infra. — In  the  interval  be- 
tween the  adoptions  of  the  two  Amendments  the  United  States  Supreme 
Court  interpreted  the  provision  in  the  Fifth  Amendment  and  many  state 
courts  interpreted  similar  provisions  in  state  constitutions.  The  courts  so 
often  relied  upon  unconvincing  reasoning  that  permanent  interpretation  and 
uniformity  among  the  several  jurisdictions  alike  seem  extremely  improb- 
able, although  an  examination  of  the  state  decisions  would  require  too  much 
time  to  warrant  its  being  made  for  the  purposes  of  this  book.  (See,  how- 
ever, Corwin,  Tlie  Doctrine  of  Due  Process  of  Law  Before  the  Civil  War,  24 
Harv.  L.  Rev.  366,  460.)  Yet  if  it  were  shown  that  the  various  decisions 
were  in  general  accord  at  the  time  of  the  adoption  of  the  Fourteenth  Amend- 
ment those  decisions  should  help  to  fix  the  meaning  of  the  Fourteenth 
Amendment  even  though  they  were  erroneous  as  to  the  provisions  they  in- 
terpreted and  were  now  all  overruled.  Of  course,  we  must  remember  that  a 
great  deal  of  weight  is  due  to  the  interpretations,  and  especially  the  un- 


INTRODUCTORY.  119 

ment  than  upon  any  other  provision  of  the  Constitution. 
It  is  true  that  thirty-six  years  ago  the  court,  after  com- 
paring the  infrequency  with  which  the  due  process  clause 
of  the  Fifth  Amendment  had  been  invoked  in  the  first 
ninety  years  of  the  country's  history  with  the  frequency 
with  which  the  similar  clause  of  the  Fourteenth  Amend- 
ment was  being  invoked,  declared  that  the  fact  that  its 
docket  was  crowded  with  cases  concerning  the  due  pro- 
cess provision  furnished  "abundant  evidence  that  there 
exists  some  strange  misconception  of  the  scope  of  this 
provision  as  found  in  the  Fourteenth  Amendment";^- 
and  that  eight  years  later  the  language  quoted  above  was 
repeated  ''with  an  expression  of  increased  surprise  at  the 
continued  misconception  of  the  purpose  of  the  provi- 

challenged  interpretations,  which  other  departments  of  the  state  and  fed- 
eral governments  showed  by  their  actions  that  they  placed  upon  the  pro- 
visions: see  Patterson,  The  United  States  and  the  States  Under  the  Con- 
stitution, 2d  ed.,  p.  234,  and  also  United  States  v.  Baruch  (1912)  223  U.  S. 
191,  200,  32  Sup.  Ct.  306,  309,  56  L.  ed.  399. 

12  "It  is  not  a  little  remarkable,  that  while  this  provision  has  been  in  the 
Constitution  of  the  United  States,  as  a  restraint  upon  the  authority  of  the 
federal  government,  for  nearly  a  century,  and  while,  during  all  that  time, 
the  manner  in  which  the  powers  of  that  government  have  been  exercised  has 
been  watched  with  jealousy,  and  subjected  to  the  most  rigid  criticism  in  all 
its  branches,  this  special  limitation  upon  its  powers  has  rarely  been  invoked 
in  the  judicial  forum  or  the  more  enlarged  theatre  of  public  discussion. 
But  while  it  has  been  a  part  of  the  Constitution,  as  a  restraint  upon  the 
power  of  the  states,  only  a  very  few  years,  the  docket  of  this  court  is 
crowded  with  cases  in  which  we  are  asked  to  hold  that  state  courts  and 
state  legislatures  have  deprived  their  own  citizens  of  life,  liberty,  or  prop- 
erty without  due  process  of  law.  There  is  here  abundant  evidence  that 
there  exists  some  strange  misconception  of  the  scope  of  this  provision  as 
found  in  the  Fourteenth  Amendment.  In  fact,  it  would  seem,  from  the  char- 
acter of  many  of  the  cases  before  us,  and  the  arguments  made  in  them,  that 
the  clause  under  consideration  is  looked  upon  as  a  means  of  bringing  to  the 
test  of  the  decision  of  this  court  the  abstract  opinions  of  every  unsuccessful 
litigant  in  a  state  court  of  the  justice  of  the  decision  against  him,  and  of 
the  merits  of  the  legislation  on  which  such  a  decision  may  be  founded:"  Dav- 
idson V.  New  Orleans  (1877)  96  U.  S.  97,  103,  104,  24  L.  ed.  616.  See  also 
eases  in  note  51  in  Chapter  4,  infra. 


120  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

sion. ' '  ^^  But,  nevertheless,  those  clauses  are  to-day  in- 
voked more  often  than  ever  before,^  ^  and,  whether  or  not 
this  is  due  to  a  continued  misunderstanding  of  the  pro- 
vision, the  fact  that  the  clauses  are  so  often  appealed  to 
unquestionably  shows  the  importance  of  understanding 
them  correctly. 

THE  "PERSONS"  PROTECTED. 

57.  The  tei'm  '^ persons"  in  the  due  process  provision 
includes  natural  persons  as  a  matter  of  course.  The  court 
has  also  decided  repeatedly  that  the  term  includes  within 
its  scope  corporations,^^  both  domestic  and  foreign,^ "^  al- 

13  Missouri  P.  Ry  Co.  v.  Humes  (1885)  115  U.  S.  512,  520,  6  Sup.  Ct.  110, 
112,  29  L.  ed.  463.  See  also  authorities  in  note  51  in  Chapter  4,  infra.  "At 
the  beginning  of  the  October  Term  of  1877,  the  Supreme  Court  had  ren- 
dered only  nine  opinions  in  cases  involving  the  Fourteenth  Amendment. 
From  1877  to  the  beginning  of  the  October  Term  of  1885,  twenty-six  addi- 
tional opinions  were  rendered,  making  a  total  of  thirty-five  for  the  first  six- 
teen years  of  the  operation  of  the  Amendment.  What  would  the  learned 
Justices  have  said  could  they  have  seen  the  present-day  operation  of  the 
Amendment!  Within  the  last  thirteen  years  the  Supreme  Court  has  deliv- 
ered four  hundred  and  nine  opinions  by  way  of  interpreting  section  one  of 
the  Amendment,  this  being  an  average  of  about  thirty-one  opinions  each 
year:"  Collins,  The  Fourteenth  Amendment  and  the  States,  27. 

14  "Within  the  past  forty  years  the  Supreme  Court  has  delivered  more 
than  four  hundred  opinions  involving  the  one  question  of  the  states  taking 
property  without  due  process  of  law.  Less  than  one  hundred  of  these  cases 
arose  prior  to  1890.  More  than  one-half  of  all  of  them  deal  with  the  rela- 
tions of  the  states  to  the  corporations — the  public  service  companies  form- 
ing the  predominating  element.  This  is,  therefore,  an  intensely  modern 
question  and  one,  it  seems,  which  cannot  be  solved  by  the  courts:"  Collins, 
The  Fourteenth  Amendment  and  the  States,  116.  See  also  ibid.  125;  and 
notes  13,  supra,  and  62,  infra. 

15 Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct.  565, 
43  L.  ed.  858;  Smj-th  v.  Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L. 
ed.  819;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  (1897)  165  U.  S.  150,  17  Sup.  Ct. 
255,  41  L.  ed.  666;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S. 
578,  17  Sup.  Ct.  198,  41  L.  ed.  560,  and  cases  there  cited.  Compare  Collins, 
The  Fourteenth  Amendment  and  the  States,  126,  127 ;  and  note  4  in  Chapter 
5,  infra. — There  is  a  dictum  in  Northwestern  N.  L.  I.  Co.  v.  Riggs  (1906) 
203  U.  S.  243,  255,  27  Sup.  Ct.  126,  129,  51  L.  ed.  168,  repeated  in  Western 


THE  "PERSONS"  PROTECTED.  121 

thoiigh  the  rights  of  those  corporations  may  be  in  some 
respects  less  than  the  rights  of  natural  persons.^ '^ 

We  have  considered  elsewhere  ^^  the  question  whether 
it  is  possible,  by  charter  or  otherwise,  to  bargain  away  the 
right  to  raise  constitutional  objections  to  acts  of  govern- 
ment. 

THE  ORGANS  OF  GOVERNMENT  RESTRAINED. 

Fourteenth  Amendment  restrains  states  and  their  organs. 

58.  The  due  process  clause  of  the  Fourteenth  Amend- 
ment applies  to  action  by  the  state  itself  through  its  con- 
stitution; ^^  and  it  applies  to  action  by  any  organ  of  state 

T.  Assn.  V.  Greenberg  (1907)  204  U.  S.  359,  363,  27  Sup.  Ct.  384,  386,  51  L. 
ed.  620,  that  "The  liberty  referred  to  in  that  Amendment  is  the  liberty  of 
natural,  not  artificial,  persons.*'  See  also  Selover,  Bates  &  Co.  v.  Walsh 
(1912)  226  U.  S.  112,  126,  33  Sup.  Ct.  69,  72,  57  L.  ed.  146.  This  is  true 
if  the  term  "liberty"  is  given  the  meaning  which  it  had  when  placed  in  the 
due  process  provision :  see  p.  244,  infra.  But  if  it  is  given  the  meaning  which 
the  court  now  gives  to  it  with  reference  to  natural  persons,  the  thought  of 
the  court  is  not  aptly  expressed:  see  22  Harv.  L.  Rev.  251,  252.  The  court 
should  have  said,  rather,  that  a  corporation  has  fewer  rights  than  a  na- 
tural person:  see  note  17,  infra.  And  on  the  question  of  the  "liberty" 
of  corporations,  consider  also  Adair  v.  United  States  (1908)  208  U.  S.  161, 
172,  28  Sup.  Ct.  277,  279,  52  L.  ed.  436. 

16  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S.  1,  30  Sup.  Ct.  190,  54  L. 
ed.  355;  Pullman  Co.  v.  Kansas  (1910)  216  U.  S.  56,  30  Sup.  Ct.  232,  54  L. 
ed.  378;  Southern  Ry.  Co.  v.  Greene  (1910)  216  U.  S.  400,  416,  417,  30 
Sup.  Ct.  287,  291,  54  L.  ed.  536;  see  also  Carroll  v.  Greenwich  Ins.  Co. 
(1905)    199  U.  S.  401,  409,  26  Sup.  Ct.  66,  67,  50  L.  ed.  246. 

17  Hammond  P.  Co.  v.  Arkansas  (1909)  212  U.  S.  322,  29  Sup.  Ct.  370,  53 
L.  ed.  530;  Berea  College  v.  Kentucky  (1908)  211  U.  S.  45,  29  Sup.  Ct.  33, 
53  L.  ed.  81;  National  Coimcil  J.  0.  U.  A.  M.  v.  State  Council  (1906)  203 
U.  S.  151,  27  Sup.  Ct.  46,  51  L.  ed.  132.  See  also  St.  Mary's  F.-A.  P.  Co.  v. 
West  Virginia  (1906)  203  U.  S.  183,  27  Sup.  Ct.  132,  51  L.  ed.  144.  Com- 
pare cases  in  notes  15,  16,  supra. 

18  See  sec.  22,  supra. 

19  Louisville  &  N.  R.  Co.  v.  Central  S.  Y.  Co.  (1909)  212  U.  S.  132,  29 
Sup.  Ct.  246,  53  L.  ed.  441.  On  the  decision  in  this  case  see  dissenting  opin- 
ion and  also  Londoner  v.  Denver  (1908)  210  U.  S.  373,  379,  28  Sup.  Ct.  708, 


122  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

government.  -°    This  is  true  whether  the  action  is  by  the 
legislature,^^  or  the  judiciary,^ ^  or  the  officers  of  the  cen- 

711,  52  L.  ed.  1103,  of  which  the  two  reports  last  cited  are  more  complete 
than  that  first  cited;  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S. 
265,  279,  29  Sup.  Ct.  50,  54,  53  L.  ed.  176;  Lindsley  v.  Natural  C.  G.  Co. 
(1911)  220  U.  S.  61,  73,  31  Sup.  Ct.  337,  338,  55  L.  ed.  369;  dissenting 
opinion  in  Raymond  v.  Chicago  U.  T.  Co.  (1907)  207  U.  S.  20,  41,  28  Sup. 
Ct.  7,  14,  52  L.  ed.  78;  cases  in  note  44  et  seq.,  infra. 

20  On  the  significance  of  the  word  '"state"  in  the  Fourteenth  Amendment 
see  sec.  74,  infra,  and  note  44,  infra. 

21  Missouri  P.  Ry.  Co.  v.  Tucker  (1913)  230  U.  S.  340,  33  Sup.  Ct.  961, 
57  L.  ed.  1507;  Missouri  P.  Ry.  Co.  v.  Nebraska  (1910)  217  U.  S.  196,  30 
Sup.  Ct.  461,  54  L.  ed.  727;  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S. 
1,  30  Sup.  Ct.  190,  54  L.  ed.  355;  Pullman  Co.  v.  Kansas  (1910)  216  U.  S. 
56,  30  Sup.  Ct.  232,  54  L.  ed.  378;  Ludwig  v.  Western  U.  T.  Co.  (1910)  216 
U.  S.  146,  30  Sup.  Ct.  280,  54  L.  ed.  423;  Otis  Co.  v.  Ludlow  M.  Co.  (1906) 
201  U.  S.  140,  26  Sup.  Ct.  353,  50  L.  ed.  696;  Union  R.  T.  Co.  v.  Kentucky 
(1905)  199  U.  S.  194,  26  Sup.  Ct.  36,  50  L.  ed.  150;  Delaware,  L.  &  W.  R. 
Co.  V.  Pennsylvania  (1905)  198  U.  S.  341,  25  Sup.  Ct.  669,  49  L.  ed.  1077; 
Lochner  v.  New  York  (1905)  198  U.  S.  45,  25  Sup.  Ct.  539,  49  L.  ed.  93; 
Bradley  v.  Lightcap  (1904)  195  U.  S.  1,  24  Sup.  Ct.  748,  49  L.  ed.  65;  Lou- 
isville &  J.  F.  Co.  V.  Kentucky  (1903)  188  U.  S.  385,  23  Sup.  Ct.  463,  47  L. 
ed.  513;  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19  Sup. 
Ct.  565,  43  L.  ed.  858;  Smyth  v.  Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct. 
418,  42  L.  ed.  819;  Allgeyer  v.  Louisiana  (1897)  165  U.  S.  578,  17  Sup.  Ct. 
427,  41  L.  ed.  832;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S. 
578,  17  Sup.  Ct.  198,  41  L.  ed.  560.  See  also  Choate  v.  Trapp  (1912)  224 
U.  S.  665,  32  Sup.  Ct.  565,  56  L.  ed.  941;  Prentis  v.  Atlantic  C.  L.  Co. 
(1908)  211  U.  S.  210,  29  Sup.  Ct.  67,  53  L.  ed.  150;  Chesapeake  &  P.  T.  Co. 
V.  Manning  (1902)  186  U.  S.  238,  22  Sup.  Ct.  881,  46  L.  ed.  1144;  Central 
of  Ga.  Ry.  Co.  v.  Wright  (1907)  207  U.  S.  127,  28  Sup.  Ct.  47,  52  L.  ed.  134. 
Compare  Walker  v.  Sauvinet  (1875)   92  U.  S.  90,  23  L.  ed.  678. 

22Selliger  v.  Kentucky  (1909)  213  U.  S.  200,  29  Sup.  Ct.  449,  53  L.  ed. 
761;  Buck  V.  Beach  (1907)  206  U.  S.  392,  27  Sup.  Ct.  712,  51  L.  ed.  1106; 
Wetmore  v.  Karrick  (1907)  205  U.  S.  141,  27  Sup.  Ct.  434,  51  L.  ed.  745; 
Old  W.  M.  L.  Assn.  v.  McDonough  (1907)  204  U.  S.  8,  23,  27  Sup.  Ct.  236, 
241,  51  L.  ed.  345;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200  U.  S.  561, 
594,  26  Sup.  Ct.  341,  350,  50  L.  cd.  59G:  Scott  v.  McNeal  (1894)  1,54  U.  S. 
34,  14  Sup.  Ct.  1108,  38  L.  ed.  896  (explained  in  Cunnius  v.  Reading  School 
Dist.  (1905)  198  U.  S.  458,  475,  25  Sup.  Ct.  721,  726,  49  L.  ed.  1125)  ;  Fay- 
erweather  v.  Ritch  (1904)  195  U.  S.  276,  25  Sup.  Ct.  58,  49  L.  ed.  193;  Na- 
tional Ex.  Bank  v.  Wiley  (1904)  195  U.  S.  257,  270,  25  Sup.  Ct.  70,  75,  49 
L.  ed.  184;  Green  B.  &  M.  C.  Co.  v.  Patten  P.  Co.  (1898)  172  U.  S.  58,  82, 
19  Sup.  Ct.  97,  106,  43  L.  ed.  364  (1899)  173  U.  S.  179,  19  Sup.  Ct.  316, 
43  L.  ed.  658;  Missouri  P.  Ry.  Co.  v.  Nebraska   (1896)    164  U.  S.  403,   17 


ORGANS  OF  GOVERNMENT  RESTRAINED.  123 

tral  administration,^"  although  it  seems  that  acts  by 
municipalities,^^  or  subordinate  officers,^^  or  private  indi- 

fcup.  Ct.  130,  41  L.  ed.  489.  See  also  Prentis  v.  Atlantic  C.  L.  Co.  (1908) 
211  U.  S.  210,  29  Sup.  Ct.  67,  53  L.  ed.  150;  Carter  v.  Texas  (1900)  177  U. 
S.  442,  20  Sup.  Ct.  687,  44  L.  ed.  839;  Backus  v.  Fort  S.  U.  D.  Co.  (1898) 
169  U.  S.  557,  18  Sup.  Ct.  445,  42  L.  ed.  853;  Chicago,  B.  &  Q.  R.  Co.  v.  Chi- 
cago (1897)  166  U.  S.  226,  17  Sup.  Ct.  581,  41  L.  ed.  979;  Neal  v.  Delaware 
(1880)  103  U.  S.  370,  26  L.  ed.  567;  Virginia  v.  Rives  (1879)  100  U.  S.  313, 
25  L.  ed.  667;  Central  of  Ga.  Ry.  Co.  v.  Wright  (1907)  207  U.  S.  127,  28 
Sup.  Ct.  47,  52  L.  ed.  134;  Iron  C.  Co.  v.  Negaunee  I.  Co.  (1905)  197  U.  S. 
463,  25  Sup.  Ct.  474,  49  L.  ed.  836;  Madisonville  T.  Co.  v.  St.  Bernard  M. 
Co.  (1905)  196  U.  S.  239,  25  Sup.  Ct.  251,  49  L.  ed.  462.  Compare  Mar- 
chant  V.  Pennsylvania  R.  Co.  (1894)  153  U.  S.  380,  385,  386,  14  Sup.  Ct. 
894,  896,  38  L.  ed.  751;  Fallbrook  Irr.  Dist,  v.  Bradley  (1896)  164  U.  S. 
112,  157.  168,  170,  17  Sup.  Ct.  56,  62,  66,  67,  41  L.  ed.  369;  Morley  v.  Lake 
S.  &  M.  S.  Ry.  Co.  (1892)  146  U.  S.  162,  171,  13  Sup.  Ct.  54,  58,  36  L.  ed. 
925;  and  cases  in  note  38,  infra. 

23  State  of  Washington  ex  rel.  Oregon  R.  &  N.  Co.  v.  Fairchild  (1912) 
224  U.  S.  510,  32  Sup.  Ct.  535,  56  L.  ed.  863;  Railroad  Comn.  of  Louisiana 
v.  Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed. 
577;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  (1900)  176  U.  S.  167,  20  Slip. 
Ct.  336,  44  L.  ed.  417;  Reagan  v.  Farmers'  L.  &  T.  Co.  ( 1894)  154  U.  S.  362, 
14  Sup.  Ct.  1047,  38  L.  ed.  1014;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota 
(1890)  134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33  L.  ed.  970;  Minneapolis  E. 
Ry.  Co.  V.  Minnesota  (1890)  134  U.  S.  467,  10  Sup.  Ct.  473,  702,  33  L.  ed. 
985;  Prout  v.  Starr  (1903)  188  U.  S.  537,  23  Sup.  Ct.  398,  47  L.  ed.  584. 
See  also  Home  T.  &  T.  Co.  v.  Los  Angeles  (1913)  227  U.  S.  278,  33  Sup.  Ct. 
312,  57  L.  ed.  510;  Choate  v.  Trapp  (1912)  224  U.  S.  665,  32  Sup.  Ct.  565, 
56  L.  ed.  941;  Raymond  v.  Chicago  U.  T.  Co.  (1907)  207  U.  S.  20,  28  Sup. 
Ct.  7,  52  L.  ed.  78;  Londoner  v.  Denver  (1908)  210  U.  S.  373,  28  Sup.  Ct. 
708,  52  L.  ed.  1103;  Fargo  v.  Hart  (1904)  193  U.  S.  490,  24  Sup.  Ct.  498,  48 
L.  ed.  761;  Missouri  P.  Ry.  Co.  v.  Nebraska  (1896)  164  U.  S.  403,  17  Sup. 
Ct.  130,  41  L.  ed.  489;  Douglas  P.  J.  C.  v.  Grainger  (1906)  146  Fed.  414; 
Spring  V.  W.  v.  San  Francisco  (1903)  124  Fed.  574.  Compare  Arbuckle  v. 
Blackburn  (1903)  191  U.  S.  405,  24  Sup.  Ct.  148,  48  L.  ed.  239;  Fallbrook 
Irr.  Dist.  v.  Bradley  (1896)  164  U.  S.  112,  170,  17  Sup.  Ct.  56,  67,  41  L.  ed. 
369;  Hooe  v.  United  States  (1910)  218  U.  S.  322,  335,  31  Sup.  Ct.  85,  89,  54 
L.  ed.  1055. 

24  In  Barney  v.  New  York  (1904)  193  U.  S.  430,  24  Sup.  Ct.  502,  48  L.  ed. 
737,  the  Supreme  Court  sustained  the  refusal  of  a  lower  federal  court  to 
enjoin  the  continuance  by  a  board  and  a  contractor  with  that  board,  and  by 
a  city  through  them,  of  conduct  which  was  forbidden  by  state  statute.  In 
Savannah,  T.  &  I.  of  H.  Ry.  v.  Savannah  (1905)  198  U.  S.  392,  25  Sup.  Ct. 
690,  49  L.  ed.  1097,  the  above  case  was  cited  as  authority  for  the  dictum 
that  the  collection  by  a  municipality  of  a  tax  unauthorized  by  state  law 


124  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

vidualSj^^  unless  authorized  or  until  supported  by  the 

would  not  violate  the  due  process  clause.  The  enforcement  of  that  tax  had 
been  sustained  by  the  state  court.  (With  this  case,  however,  compare  Ray- 
mond V.  Chicago  U.  T.  Co.  (1907)  207  U.  S.  20,  28  Sup.  Ct.  7,  52  L.  ed. 
78.)  In  City  of  Memphis  v.  Cumberland  T.  &  T.  Co.  (1910)  218  U.  S.  624, 
31  Sup.  Ct.  115,  54  L.  ed.  1185,  which  arose  in  a  federal  court,  the  Supreme 
Court  decided  that  an  ordinance  which  was  unauthorized  by  state  law  would 
not  violate  the  Fourteenth  Amendment.  And  in  City  of  Dawson  v.  Co- 
lumbia A.  S.  F.,  S.  D.,  T.  &  T.  Co.  (1905)  197  U.  S.  178,  25  Sup.  Ct.  420,  49 
L.  ed.  713;  Shawnee  S.  &  D.  Co.  v.  Stearns  (1911)  220  U.  S.  462,  31  Sup. 
Ct.  452,  55  L.  ed.  544,  the  Supreme  Court  decided  that  a  breach  of  contract 
by  a  city  which  was  unsupported  by  statute  was  not  unconstitutional.  See 
also  Portland  Ry.,  L.  &  P.  Co.  v.  Portland  (1912)  200  Fed.  890;  City  of 
Louisville  v.  Cumberland  T.  &  T.  Co.  (1907)  155  Fed.  725.  On  the  other 
hand,  compare  the  cases  cited  in  that  opinion  where  municipal  action  was 
based  on  legislation.  In  Dobbins  v.  Los  Angeles  (1904)  195  U.  S.  223,  25 
Sup.  Ct.  18,  49  L.  ed.  169,  the  Supreme  Court  declared  unconstitutional  an 
ordinance  which  had  been  upheld  by  the  state  court  and  which  unwarrant- 
ably prevented  the  building  of  a  gas  worlcs.  In  Norwood  v.  Baker  (1898) 
172  U.  S.  269,  19  Sup.  Ct.  187,  43  L.  ed.  443,  the  same  court  held  invalid 
an  ordinance  passed  in  accordance  with  statute.  (Remainder  of  case  prac- 
tically overruled  in  French  v.  Barber  A.  P.  Co.  (1901)  181  U.  S.  324, 
21  Sup.  Ct.  625,  45  L.  ed.  879.)  In  North  A.  C.  S.  Co.  v.  Chicago  (1908) 
211  U.  S.  306,  29  Sup.  Ct.  101,  53  L.  ed.  195,  the  court  decided  that  an  ordi- 
nance passed  in  accordance  with  statute  must  be  regarded  as  an  act  of  the 
state:  the  ordinance,  however,  was  sustained.  In  Londoner  v.  Denver 
(1908)  210  U.  S.  373,  28  Sup.  Ct.  708,  52  L.  ed.  1103,  which  arose  in  a  state 
court,  an  assessment  had  been  made  by  a  city  council,  acting  as  a  board  of 
equalization,  and  a  property  owner  had  not  been  afforded  any  opportunity 
for  a  hearing:  the  Supreme  Court  held  that  the  assessment  by  the  council 
was  action  by  the  state,  and  declared  that  action  to  be  unconstitutional.  And 
in  Iron  M.  R.  Co.  v.  Memphis  (1899)  96  Fed.  113,  a  circuit  court  of  appeals 
directed  a  lower  court  to  inquire  whether  a  railroad  had  so  acted  as  to  jus- 
tify a  city  in  ousting  the  company  from  its  streets,  the  legislature  having 
given  the  city  general  power  over  the  streets.  On  the  power  of  local  gov- 
ernmental boards  see  also  Ozark-Bell  T.  Co.  v.  City  of  Springfield  (1905) 
140  Fed.  666;  Spring  V.  W.  v.  San  Francisco  (1903)  124  Fed.  574;  Pacific 
G.  I.  Co.  V.  EUcrt  (1894)  64  Fed.  421.  The  decision  in  Riverside  &  A.  Ry. 
Co.  V.  Riverside  (1902)   118  Fed.  736,  was  unsound. 

25  See  Barney  v.  New  York  (1904)  193  U.  S.  430,  24  Sup.  Ct.  502,  48  L. 
ed.  737;  People  v.  Van  de  Carr  (1905)  199  U.  S.  552,  26  Sup.  Ct.  144,  50  L. 
ed.  305.  Compare  Pacific  G.  I.  Co.  v.  Ellert  (1894)  64  Fed.  421;  Yick  Wo 
V.  Hopkins  (1886)  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  ed.  220,  the  latter 
of  which  was  decided  under  the  equal  protection  provision. 

26  Civil  Rights  Cases   (1883)    109  U.  S.  3,  3  Sup.  Ct.  18,  27  L.  ed.  835; 


ORGANS  OF  GOVERNMENT  RESTRAINED.  125 

state  authorities,  do  not  come  within  the  purview  of  the 
Constitution;-^  and,  a  fortiori,  acts  by  municipalities 
which  are  in  excess  of  authority  from  the  state  do  not  for 
that  reason  violate  the  clause  which  we  are  considering.^^ 
Where,  however,  a  municipality,  acting  within  the  scope 
of  powers  conferred  by  the  state,  misuses  those  powers, 
such  actions  may  violate  the  constitutional  restraint.^^ 

United  States  v.  Cruikshank  (1875)  92  U.  S.  542,  554,  23  L.  ed.  588.  See 
also  United  States  v.  Harris  (1883)  106  U.  S.  629,  1  Sup.  Ct.  601,  27  L.  ed. 
290;  Hodges  v.  United  States  (1906)  203  U.  S.  1,  14,  27  Sup.  Ct.  6,  7,  51 
L.  ed.  65;  James  v.  Bowman  (1903)  190  U,  S.  127,  23  Sup.  Ct.  678,  47  L. 
ed.  979. 

27  Compare,  however,  Home  T.  &  T.  Co.  v.  Los  Angeles  (1913)  227  U.  S. 
278,  33  Sup.  Ct.  312,  57  L.  ed.  510,  where  all  that  it  was  necessary  for  the 
court  to  say  was  that  "acts  done  under  the  authoritj'  of  a  municipal  ordi- 
nance passed  in  virtue  of  power  conferred  by  a  state  are  embraced  by  the 
Fourteenth  Amendment:"  227  U.  S.  at  294,  33  Sup.  Ct.  at  317,  57  L.  ed. 
at  518,  and  yet  the  court  said,  "It  may  not  be  doubted  that  wliere  a  state 
ofl&cer  under  an  assertion  of  power  from  the  state  is  doing  an  ac£  which 
could  only  be  done  upon  the  predicate  that  there  was  such  power,  rlie  in- 
quiry as  to  the  repugnancy  of  the  act  to  the  Fourteenth  Amencmieni  can- 
not be  avoided  by  insisting  that  there  is  a  want  of  power.  That  is  to  say, 
a  state  officer  cannot  on  the  one  hand  as  a  means  of  doing  a  wrong  forbidden 
by  the  Amendment  proceed  upon  the  assumption  of  the  possession  of  state 
power  and  at  the  same  time  for  the  purpose  of  avoiding  the  application  of 
the  Amendment,  deny  the  power  and  thus  accomplish  the  wrong:"  227  U.  S. 
at  288,  33  Sup.  Ct.  at  315,  57  L.  ed.  at  515.  But  see  Hooe  v.  United  States 
(1910)  218  U.  S.  322,  335,  31  Sup.  Ct.  85,  89,  54  L.  ed.  1055. 

28  0wensboro  W.  Co.  v.  Owensboro  (1906)  200  U.  S.  38,  26  Sup.  Ct.  249, 
50  L.  ed.  361. 

29  The  Amendment  provides  "for  a  case  where  one  who  is  in  possession 
of  state  power  uses  that  power  to  the  doing  of  the  wrongs  which  the  Amend- 
ment forbids  even  although  the  consummation  of  the  wrong  may  not  be 
within  the  powers  possessed  if  the  commission  of  the  wrong  itself  is  ren- 
dered possible  or  is  efficiently  aided  by  the  state  authority  lodged  in  the 
wrongdoer.  That  is  to  say,  the  theory  of  the  Amendment  is  that  where  an 
officer  or  other  representative  of  a  state  in  the  exercise  of  the  authority 
with  which  he  is  clothed  misuses  the  power  possessed  to  do  a  wrong  for- 
bidden by  the  Amendment,  inquiry  concerning  whether  the  state  has  au- 
thorized the  wrong  is  irrelevant  and  the  federal  judicial  power  is  competent 
to  afford  redress  for  the  wrong  by  dealing  with  the  officer  and  the  result 
of  his  exertion  of  power.  To  speak  broadly,  the  difference  between  the  prop- 
osition   insisted    upon    and    the    true    meaning    of    the    Amendment    is 


126  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Fifth  Amendment  restrains  organs  of  federal  government. 

59.  As  we  have  already  noted,^^  the  Supreme  Court 
proceeds  upon  the  assumption  that  the  due  process  pro- 
vision has  in  general  the  same  meaning  in  both  the  Fifth 
Amendment  and  the  Fourteenth  Amendment,  save,  of 
course,  that  the  Fifth  Amendment  relates  only  to  the  fed- 
eral government  while  the  Fourteenth  Amendment  relates 
to  the  governments  of  the  several  states.  The  decisions 
which  have  been  rendered  under  the  Fourteenth  Amend- 
ment are,  therefore,  usually  pertinent  by  way  of  analogy 
in  cases  which  arise  under  the  Fifth  Amendment,  al- 
though it  goes  without  saying  that  the  Fifth  Amendment 
does  not  prohibit  the  making  of  changes  in  the  Federal 
Constitution.^^ 

But  few  cases  have  arisen  under  the  due  process  clause 
of  the  Fifth  Amendment.  There  are,  however,  decisions 
that  the  clause  restrains  Congress  ^^  and  that  it  restrains 
the  heads  of  departments.^^ 

this,  that  the  one  assumes  that  the  Amendment  virtually  contem- 
plates alone  wrongs  authorized  by  a  state  and  gives  only  power  ac- 
cordingly, while  in  truth  the  Amendment  contemplates  the  possibility  of 
state  oflScers  abusing  the  powers  lawfully  conferred  upon  them  by  doing 
wrongs  prohibited  by  the  Amendment.  In  other  words,  the  Amendment, 
looking  to  the  enforcement  of  the  rights  which  it  guarantees  and  to  the 
prevention  of  the  wrongs  which  it  prohibits,  proceeds  not  merely  upon  the 
assumption  that  states  acting  in  their  governmental  capacity  in  a  complete 
sense  may  do  acts  which  conflict  with  its  provisions,  but,  also  conceiving, 
what  was  more  normally  to  be  contemplated,  that  state  powers  might  be 
abused  by  those  who  possessed  them  and  as  a  result  might  be  used  as  the 
instrument  for  doing  wrongs,  provided  against  all  and  every  such  possible 
contingency:"  Home  T.  &  T.  Co.  v.  Los  Angeles  (1913)  227  U.  S.  278,  287, 
33  Sup.  Ct.  312,  315,  57  L.  ed.  510. 

30  Sec.  54,  supra. 

31  Compare  note  19,  supra,  as  to  the  Fourteenth  Amendment  as  a  restraint 
upon  state  action  even  though  authorized  by  the  state  constitution. 

32  Adair  v.  United  States  (1908)  208  U.  S.  161,  28  Sup.  Ct.  277,  52  L.  ed. 
436.  See  also  Choate  v.  Trapp  (1912)  224  U.  S.  665,  32  Sup.  Ct.  565,  56  L. 
ed.  941. 

3^ Garfield  v.  Goldsby  (1908)  211  U.  S.  249,  29  Sup.  Ct.  62,  53  L.  ed.  168. 


ORGANS  OF  GOVERNJIENT  RESTRAINED.  127 

Organs  for  establishing  limitations  upon  rates. 

60.  The  fact  that  limitations  upon  rates  were  decreed 
by  a  court,  which  followed  judicial  procedure,  would  not 
necessarily  satisfy  the  due  process  requirement;^^  nor 
would  the  mere  fact  that  they  were  imposed  by  legisla- 
tive ^^  or  administrative  ^^  action  make  their  enforcement 

See  also  United  States  ex  rel.  Turner  v.  Fisher  (1911)  222  U.  S.  204,  32 
Sup.  Ct.  37,  56  L.  ed.  165;  Ochoa  v.  Hernandez  y  Morales  (1913)  230  U.  S. 
139,  33  Sup.  Ct.  1033,  57  L.  ed.  1427.  Compare  Hooe  v.  United  States  (1910) 
218  U.  S.  322,  31  Sup.  Ct.  85,  54  L.  ed.  1055;  United  States  ex  rel.  Knight 
V.  Lane   (1913)   228  U.  S.  6,  33  Sup.  Ct.  407,  57  L.  ed.  709. 

34  See  Backus  v.  Fort  S.  U.  D.  Co.  (1898)  169  U.  S.  557,  18  Sup.  Ct. 
445,  42  L.  ed.  853;  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  (1897)  166  U.  S. 
226,  17  Sup.  Ct.  581,  41  L.  ed.  979,  and  other  cases  in  note  22,  supra.  It 
ia  true,  however,  that  in  consequence  of  the  Seventh  Amendment  a  federal 
court,  other  than  that  in  which  the  trial  took  place,  cannot  consider 
whether  the  verdict  of  the  jury  in  a  trial  at  common  law  was  against  the 
weight  of  the  evidence:  see  p.  363,  infra. 

35  Chesapeake  &  P.  T.  Co.  v.  Manning  (1902)  186  U.  S.  238,  22  Sup.  Ct. 
881,  46  L.  ed.  1144;  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman  (1892)  143  U.  S. 
339,  12  Sup.  Ct.  400,  30  L.  ed.  176;  Munn  v.  Illinois  (1876)  94  U.  S.  113, 
24  L.  ed.  77;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578, 
594,  17  Sup.  Ct.  198,  204,  41  L.  ed.  560;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill 
(1895)  156  U.  S.  649,  15  Sup.  Ct.  484,  39  L.  ed.  567;  Budd  v.  New  York 
(1892)  143  U.  S.  517,  12  Sup.  Ct.  468,  36  L.  ed.  247;  Dow  v.  Beidelman 
(1888)  125  U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  ed.  841;  Chicago,  B.  &  Q.  R. 
Co.  V.  Iowa  (1876)  94  U.  S.  155,  24  L.  ed.  94.  See  also  Cotting  v.  Kansas 
C.  S.  Y.  Co.  (1901)  183  U.  S.  79,  85,  22  Sup.  Ct.  30,  33,  46  L.  ed.  92;  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  V.  Tompkins  (1900)  176  U.  S.  167,  20  Sup.  Ct. 
336,  44  L.  ed.  417;  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684, 
19  Sup.  Ct.  565,  43  L.  ed.  858;  Smyth  v.  Ames  (1898)  171  U.  S.  361,  18 
Sup.  Ct.  488,  43  L.  ed.  197,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819; 
Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  397,  14  Sup.  Ct. 
1047,  1054,  38  L.  ed.  1014;  Georgia  R.  &  B.  Co.  v.  Smith  (1888)  128  U.  S. 
174,  9  Sup.  Ct.  47,  32  L.  ed.  377;  Ruggles  v.  Illinois  (1883)  108  U.  S.  526, 
2  Sup.  Ct.  832,  27  L.  ed.  812;  Stone  v.  Farmers'  L.  &  T.  Co.  (1886)  116  U. 
S.  307,  335,  6  Sup.  Ct.  334,  1191,  347,  29  L.  ed.  636. 

36  In  Atlantic  C.  L.  R.  Co.  v.  Florida  (1906)  203  U.  S.  256,  27  Sup.  Ct. 
108,  51  L.  ed.  174;  Seaboard  A.  L.  Ry.  v.  Florida  (1906)  203  U.  S.  261, 
27  Sup.  Ct.  109,  51  L.  ed.  175;  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota 
(1902)  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151;  Georgia  R.  &  B.  Co. 
V.  Smith  (1888)  128  U.  S.  174,  9  Sup.  Ct.  47,  32  L.  ed.  377;  Stone  v. 
Farmers'  L.  &  T.  Co.    (1886)    116  U.  S.  307,  6  Sup.  Ct.  334,  388,  1191,  29 


128  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

violative  of  that  requirement.  Limitations  which  muni- 
cipal authorities  have  placed  upon  the  charges  of  quasi- 
public  corporations  have  been  sustained.^''^ 

It  is,  therefore,  clear  that  judicial  participation  in  the 
establishment  of  rates  is  not  essential.^^  Indeed,  the  court 
has  declared  that  "the  function  of  rate-making  is  purely 
legislative  in  its  character,  and  this  is  true,  whether  it  is 
exercised  directly  by  the  legislature  itself  or  by  some 
subordinate  or  administrative  body,  to  whom  the  power 
of  fixing  rates  in  detail  has  been  delegated.  The  com- 
pleted act  derives  its  authority  from  the  legislature  and 
must  be  regarded  as  an  exercise  of  the  legislative 
power. ' '  ^^ 

L.  ed.  636;  Stone  v.  Illinois  C.  R.  Co.  (1886)  116  U.  S.  347,  6  Sup.  Ct.  348, 
388,  1191,  29  L.  ed.  650,  the  court  upheld  rate  regulations  by  state  commis- 
sions, and  in  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup. 
Ct.  1047,  38  L.  ed.  1014;  Reagan  v.  Mercantile  T.  Co.  (1894)  154  U.  S.  413, 
418,  14  Sup.  Ct.  1060,  1062,  38  L.  ed.  1028,  while  the  court  decided  that  the 
schedules  ordered  by  the  commission  were  too  low,  it  also  decided  that  the 
commission  might  establish  other  schedules.  See  also  Smyth  v.  Ames 
(1898)  171  U.  S.  361,  18  Sup.  Ct.  488,  43  L.  ed.  197;  Chicago,  M.  &  St.  P. 
Ry.  Co.  V.  Tompkins  (1900)  176  U.  S.  167,  20  Sup.  Ct.  336,  44  L.  ed.  417; 
Interstate  Com.  Comn.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (1897)  167  U. 
S.  479,  494,  17  Sup.  Ct.  896,  898,  42  L.  ed.  243.  In  none  of  the  above  cases 
did  the  court  discuss  the  bearing  of  the  due  process  clauses  upon  pro- 
cedure. 

37Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  29  Sup.  Ct.  148, 
53  L.  ed.  371;  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  29 
Sup.  Ct.  50,  53  L.  ed.  176;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899) 
174  U.  S.  739,  19  Sup.  Ct.  804,  43  L.  ed.  1154;  see  also  Burlington,  C.  R. 
&  N.  Ry.  Co.  V.  Dey  (1891)  82  Iowa,  312,  48  N.  W.  98,  12  L.  R.  A.  436; 
People's  G.  L.  &  C.  Co.  v.  Chicago  (1904)  194  U.  S.  1,  24  Sup.  Ct.  620, 
48  L.  ed.  851;  Owensboro  v.  Owensboro  W.  Co.  (1903)  191  U.  S.  358,  24 
Sup.  Ct.  82,  48  L.  ed.  217. 

38  Compare  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S. 
418,  10  Sup.  Ct.  462,  702,  33  L.  ed.  970;  Ex  parte  Young  (1908)  209  U. 
S.  123,  147,  148,  166,  28  Sup.  Ct.  441,  448,  449,  456,  52  L.  ed.  714,  13  L.  R.  A. 
N.  S.  932,  942,  950;  Missouri  P.  Ry.  Co.  v.  Tucker  (1913)  230  U.  S.  340, 
33  Sup.  Ct.  961,  57  L.  ed.  1507,  referred  to  in  note  16  of  Chapter  2,  supra. 
But  see  note  51,  infra. 

39  Knoxville  v.  Knoxville  W.  Co.   (1909)   212  U.  S.  1,  8,  29  Sup.  Ct.  148, 


EXTENT  OF  THE  RESTRAINT.  129 

THE  EXTENT  OF  THE  RESTRAINT. 

The  proper  scope  of  the  provision. 

61.  In  a  later  chapter  ^^  we  shall  see  that  there  are 
not  merely  sufficient  but  abundant  reasons  for  saying  that 
the  court  should  hold  that  the  due  process  provision  sim- 
ply requires  that  governmental  commands  be  enforced 
only  in  the  manner  prescribed  by  the  law  of  the  land,  and 
that  the  court  should  admit  that  the  law  of  the  land  upon 
federal  matters  may  be  changed  by  the  appropriate 
federal  authorities,  subject  only  to  the  provisions  of  the 
Federal  Constitution,  and  that  the  law  of  the  land  upon 
state  matters  may  be  altered  by  the  appropriate  state  au- 
thorities, subject  only  to  the  Federal  Constitution,  to  laws 
and  treaties  made  in  accordance  with  that  Constitution, 
and  to  the  state  constitution.  In  short,  the  court  should 
hold  that  the  provision  applies  merely  to  the  manner  of 
enforcing  governmental  commands,  and  it  should  hold 
that  the  provision  does  require  that  such  commands  be 
enforced  only  in  the  manner  prescribed  by  the  law  of  the 
land. 

150,  53  L.  ed.  371.  See  also  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211 
U.  S.  265,  271,  278,  29  Sup.  Ct.  50,  51,  54,  53  L.  ed.  176;  Prentis  v.  Atlan- 
tic C.  L.  Co.  (1908)  211  U.  S.  210,  29  Sup.  Ct.  67,  53  L.  ed.  150;  Honolulu 
R.  T.  &  L.  Co.  V.  Hawaii  ( 1908)  211  U.  S.  282,  29  Sup.  Ct.  55,  53  L.  ed.  186; 
note  19  in  Chapter  2,  supra;  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183 
U.  S.  503,  515,  22  Sup.  Ct.  95,  100,  46  L.  ed.  298;  Munn  v.  Illinois  (1876)  94 
U.  S.  113,  133,  134,  24  L.  ed.  77;  Chesapeake  &  P.  T.  Co.  v.  Manning  (1902) 
186  U.  S.  238,  244,  245,  22  Sup.  Ct.  881,  884,  46  L.  ed.  1144;  Gilmore, 
Governmental  Regulation  of  Prices,  17  Green  Bag,  627;  White,  Government 
Control  of  Transportation  Charges,  37  Am.  L.  Reg.  N.  S.  721,  729;  Freund, 
Police  Power,  p.  382;  Stimson,  Federal  and  State  Constitutions,  book 
II,  chap.  2;  Code  of  Hammurabi,  sees.  271,  272,  276,  277;  and  Spring  V. 
W.  V.  San  Francisco  (1903)  124  Fed.  574;  Western  U.  T.  Co.  v.  Myatt 
(1899)  98  Fed.  335;  Capital  C.  G.  Co.  v.  Des  Moines  (1896)  72  Fed. 
818,  822. 

40  See  Chapter  4,  where  these  questions  are  discussed  at  length. 


130  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

The  position  of  the  court. 

62.  The  court,  however,  does  not  take  either  of  these 
positions.  It  takes  a  position  which  does  not  rest  upon 
either  history,  sound  logic  or  a  literal  interpretation  of 
the  terms  of  the  provision.^  ^  The  court  says  that  the 
clauses  relate  not  only  to  procedure  but  also  to  substan- 
tive law.^^  It  does  not  regard  them  as  requiring  that 
governmental  actions  comply  with  the  law  of  the  land. 
And  it  practically  regards  the  provision  as  authorizing 
the  court  to  impose  upon  governmental  actions  such  tests 
of  fitness  as  the  court  itself  may  choose  to  impose. 

A  suitable  procedure. 

63.  The  court  has  taken  several  inconsistent  positions 
with  regard  to  the  procedural  restraint  which  is  imposed 
by  the  due  process  provision.^^     The  position,  however, 

41  See  Chapter  4,  infra,  where  these  questions  are  discussed  at  length. 

^-  See  sec.  66,  infra. 

43  In  Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.  (1855)  18  How.  272,  276, 
15  L.  ed.  372,  it  is  said,  "It  is  manifest  that  it  was  not  left  to  the  legisla- 
tive power  to  enact  any  process  which  might  be  devised."  On  the  other 
hand,  in  Walker  v.  Sauvinet  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678,  it  is 
said,  "This  requirement  of  the  Constitution  is  met  if  the  trial  is  had  ac- 
cording to  the  settled  course  of  legal  proceedings.  Due  process  of  law  is 
process  due  according  to  the  law  of  the  land.  This  process  in  the  states  is 
regulated  by  the  law  of  the  state."  See  also  Missouri  v.  Lewis  (1879) 
101  U.  S.  22,  31,  25  L.  ed.  989;  Hurtado  v.  California  (1884)  110  U.  S. 
510,  535,  4  Sup.  Ct.  Ill,  292,  120,  28  L.  ed.  232;  In  re  Kemmler  (1890) 
136  U.  S.  436,  448,  10  Sup.  Ct.  930,  934,  34  L.  ed.  519.  In  Arrowsmith  v. 
Harmoning  (1886)  118  U.  S.  194,  6  Sup.  Ct.  1023,  30  L.  ed.  243,  it  is  de- 
clared to  be  sufficient  if  the  legislature  prescribed  a  suitable  procedure 
although  the  state  court  made  a  material  departure  from  that  procedure. 
See  also  Kenuard  v.  Louisiana  (1875)  92  U.  S.  480,  481,  23  L.  ed.  478; 
Turpin  v.  Lemon  (1902)  187  U.  S.  51,  57,  23  Sup.  Ct.  20,  23,  47  L.  ed.  70. 
It  is  not  clear  that  in  Baltimore  T.  Co.  v.  Baltimore  B.  R.  Co.  (1894)  151 
U.  S.  137,  14  Sup.  Ct.  294,  38  L.  ed.  102,  the  Supreme  Court  took  a  posi- 
tion similar  to  that  in  Arrowsmith  v.  Harmoning,  although  the  official  re- 
norter  thought  that  it  did.    On  the  other  hand,  in  Home  T.  &  T.  Co.  v.  Los 


EXTENT  OF  THE  RESTRAINT.  131 

which  is  best  supported  by  the  trend  of  decisions  is  that 
which  was  taken  by  the  court  when  it  said  that  in  cases 
arising  under  the  Fourteenth  Amendment  "The  only  ques- 
tion for  us  is  whether  a  state  could  authorize  the  course  of 
proceedings  adopted,  if  that  course  were  prescribed  by  its 
constitution  in  express  terms. "  ^'    In  cases  coming  from 

Angeles  (1908)  211  U.  S.  265,  279,  29  Sup.  Ct.  50,  54,  53  L.  ed.  176;  Paul- 
sen V.  Portland  (1893)  149  U.  S.  30,  38,  13  Sup.  Ct.  750,  752,  753,  37  L. 
ed.  637,  it  is  held  that  if  notice  and  hearing  are  given  the  fact  that  they 
are  not  required  by  statute  is  immaterial.  With  the  cases  last  cited,  con- 
trast the  decision  in  Louisville  &  N.  R.  Co.  v.  Central  S.  Y,  Co.  (1909) 
212  U.  S.  132,  144,  29  Sup.  Ct.  246,  248,  53  L.  ed.  441,  which  did  not  deal 
with  procedure,  and  expressions  in  opinions  there  cited,  some  of  which  did 
deal  with  procedure.  It  has  been  declared  that  when  a  state  court  is  acting 
within  its  jurisdiction  under  a  valid  statute  the  Supreme  Court  will  not 
consider  whether  the  state  court  has  followed  the  procedure  prescribed  by 
statute:  see  note  46,  infra.  In  some  cases,  as  in  Arrowsmith  v.  Harmoning, 
the  view  is  that  the  Amendment  binds  only  the  legislature;  in  other  cases, 
as  in  Rawlins  v.  Georgia  (1906)  201  U.  S.  638,  639,  26  Sup.  Ct.  560,  50  L. 
ed.  899,  "If  the  state  constitution  and  laws,  as  construed  by  the  state 
court,  are  consistent  with  the  Fourteenth  Amendment,  we  can  go  no 
further.  The  only  question  for  us  is  whether  a  state  could  authorize  the 
course  of  proceedings  adopted,  if  that  course  were  prescribed  by  its  con- 
stitution in  express  terms."  In  Lowe  v.  Kansas  (1896)  163  U.  S.  81,  85, 
16  Sup.  Ct.  1031,  1033,  41  L.  ed.  78,  where  a  procedure  authorized  by  state 
statute  is  sustained,  the  court  says,  "Whether  the  mode  of  proceeding  pre- 
scribed by  this  statute,  and  followed  in  this  case,  was  due  process  of  law, 
depends  upon  the  question  whether  it  was  in  substantial  accord  with  the 
law  and  usage  in  England  before  the  Declaration  of  Independence,  and  in 
this  country  since  it  became  a  nation,  in  similar  cases,"  citing  Murray's 
Lessee  v.  Hoboken  L.  &  I.  Co.,  supra,  and  Dent  v.  West  Virginia  (1889) 
129  U.  S.  114,  9  Sup.  Ct.  231,  32  L.  ed.  623.  The  latter  case  does  not 
support  this  proposition.  The  former  case  refers  to  the  Fifth  Amend- 
ment, and,  of  course,  the  law  and  usage  at  the  time  of  the  adoption  of  the 
Fourteenth  Amendment  were  not  necessarily  the  same  as  the  law  and  usage 
at  the  time  of  the  adoption  of  the  Fifth  Amendment.  On  the  subject  of 
this  note  in  general  and  more  especially  the  language  in  Lowe  v.  Kansas, 
supra,  see  also  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  28  Sup.  Ct. 
14,  53  L.  ed.  97,  referred  to  on  p.  169,  infra.  Compare  the  statement  in 
Montana  Co.  v.  St.  Louis  M.  &  M.  Co.  (1894)  152  U.  S.  160,  168,  14  Sup. 
Ct.  506,  508,  38  L.  ed.  398,  that  "the  question  whether  a  certain  proceed- 
ing is  due  process  of  law  is  not  determined  by  the  matter  of  age." 

44  Rawlins  v.  Georgia    (1906)    201   U.  S.   638,  640,  26  Sup.  Ct.  560,  50 
L.  ed.  899.     See  also  Lindsley  v.  Natural  C.  G.  Co.   (1911)   220  U.  S.  61,  73, 


132  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

state  courts  the  court  does  not  inquire  whether  the  action 
of  an  organ  of  state  government  conforms  to  the  proced- 
ural requirements  of  the  state  constitution  ^^  or  to  other 
valid  procedural  restraints  upon  the  organs  of  govern- 
ment; ^^  and  in  cases  arising  in  federal  courts  those  courts 

31  Sup.  Ct.  337,  338,  55  L.  ed.  369;  Patterson  v.  Colorado  (1907)  205  U. 
S.  454,  460,  27  Sup.  Ct.  556,  557,  51  L.  ed.  879;  Ballard  v.  Hunter   (1907) 

204  U.  S.  241,  260,  27  Sup.  Ct.  261,  268,  51  L.  ed.  461;  Owensboro  W.  Co. 
V.  Owensboro  (1906)  200  U.  S.  38,  47,  26  Sup.  Ct.  249,  252,  50  L.  ed.  361; 
Hammond  P.  Co.  v.  Arkansas  (1909)  212  U.  S.  322,  349,  350,  29  Sup.  Ct. 
370,  379,  53  L.  ed.  530;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor  (1908)  210 
U.  S.  281,  285,  28  Sup.  Ct.  616,  617,  52  L.  ed.  1061;  People  ex  rel.  New  Y. 
C.  &  H.  R.  R.  Co.  V.  Miller  (1906)  202  U.  S.  584,  595,  26  Sup.  Ct.  714, 
716,  50  L.  ed.  1155;  Soper  v.  Lawrence  Bros.  Co.  (1906)  201  U.  S.  359, 
370,  26  Sup.  Ct.  473,  475,  50  L.  ed.  788;  Portland  Ry.,  L.  &  P.  Co.  v.  Rail- 
road Comn.  of  Oregon  (1913)  229  U.  S.  397,  409,  410,  33  Sup.  Ct.  820,  826, 
57  L.  ed.  1248;  Selover,  Bates  &  Co.  v.  Walsh  (1912)  226  U.  S.  112,  33  Sup. 
Ct.  69,  57  L.  ed.  146. 

45  Ensign  v.  Pennsylvania  (1913)  227  U.  S.  592,  33  Sup.  Ct.  321,  57  L. 
ed.  658;  Ross  v.  Oregon  (1913)  227  U.  S.  150,  33  Sup.  Ct.  220,  57  L.  ed. 
458;  West  v.  Louisiana  (1904)  194  U.  S.  258,  24  Sup.  Ct.  650,  48  L.  ed. 
965;  Brown  v.  New  Jersey  (1899)  175  U.  S.  172,  20  Sup.  Ct.  77,  44  L.  ed. 
119;  Hallinger  v.  Davis  (1892)  146  U.  S.  314,  319,  13  Sup.  Ct.  105,  107, 
36  L.  ed.  986;  Smith  v.  Jennings  (1907)  206  U.  S.  276,  278,  27  Sup. 
Ct.  610,  611,  51  L.  ed.  1061;  and  see  Southern  P.  Co.  v.  Campbell  (1913) 
230  U.  S.  537,  33  Sup.  Ct.  1027,  57  L.  ed,  1610;  Graham  v.  West  Virginia 
(1912)  224  U.  S.  616,  32  Sup.  Ct.  583,  56  L.  ed.  917;  Walker  v.  Sauvinet 
(1875)  92  U.  S.  90,  23  L.  ed.  678;  Stickney  v.  Kel^ey  (1908)  209  U.  S. 
419,  420,  28  Sup.  Ct.  508,  509,  52  L.  ed.  863;  Patterson  v.  Colorado   (1907) 

205  U.  S.  454,  27  Sup.  Ct.  556,  51  L.  ed.  879;  Burt  v.  Smith  (1906)  203 
U.  S.   129,   135,  27  Sup.  Ct.  37,  39,  51   L.  ed.   121;   Forsyth  v.   Hammond 

(1897)  166  U.  S.  506,  518,  17  Sup.  Ct.  665,  670,  41  L.  ed.  1095;  Long  L 
W.  S.  Co.  V.  Brooklyn  (1897)  166  U.  S.  685,  17  Sup.  Ct.  718,  41  L.  ed. 
1165;  Fallbrook  Irr.  Dist.  v.  Bradley  (1896)  164  U.  S.  112,  154,  155,  17 
Sup.  Ct.  56,  61,  62,  41  L.  ed.  369;  Missouri  P.  Ry.  Co.  v.  Kansas  (1910) 
216  U.  S.  262,  272,  30  Sup.  Ct.  330,  333,  54  L.  ed.  472;  Twining  v.  New 
Jersey  (1908)  211  U.  S.  78,  91,  29  Sup.  Ct.  14,  16,  53  L.  ed.  97;  Hunter  v. 
Pittsburgh  (1907)  207  U.  S.  161,  170,  176,  28  Sup.  Ct.  40,  44,  45,  52  L. 
ed.  151;  Wilson  v.  North  Carolina  (1898)  169  U.  S.  586,  593,  594,  18  Sup. 
Ct.  435,  438,  42  L.  ed.  865;  and  note  47,  infra.  Compare  the  peculiar  de- 
cision in  Louisville  &  N.  R.  Co.  v.  Central  S.  Y.  Co.  (1909)  212  U.  S. 
132,  29  Sup.  Ct.  246,  53  L.  ed.  441,  from  which  three  justices  dissented. 

46  Watson  v.  Maryland   (1910)   218  U.  S.  173,  175,  30  Sup.  Ct.  644,  645, 


EXTENT  OF  THE  RESTRAINT.  133 

follow  the  interpretations  which  have  been  given  to  the 
state  constitutions  and  the  state  statutes  by  the  state 
courts.^''^ 

54  L.  ed.  987;  Rusch  v.  John  Duncan  L.  &  M.  Co.  (1909)  211  U.  S.  526,  29 
Sup.  Ct.  172,  53  L.  ed.  312;  Castillo  v.  McConnico  (1898)  168  U.  S.  674, 
683,  684,  IS  Sup.  Ct.  229,  233,  42  L.  ed.  622;  Moore  v.  Missouri  (1895)  159 
U.  S.  673,  16  Sup.  Ct.  179,  40  L.  ed.  301;  Brinknieier  v.  Missouri  P.  Ry. 
Co.  (1912)  224  U.  S.  268,  32  Sup.  Ct.  412,  56  L.  ed.  758;  Ballard  v.  Hunter 
(1907)  204  U.  S.  241,  259,  260,  27  Sup.  Ct.  261,  268,  51  L.  ed.  461;  French 
V.  Taylor  (1905)  199  U.  S.  274,  277,  26  Sup.  Ct.  76,  77,  50  L.  ed.  189 
Patterson  v.  Colorado  (1907)  205  U.  S.  454,  27  Sup.  Ct.  556,  51  L.  ed.  879 
Rawlins  v.  Georgia  (1906)  201  U.  S.  638,  26  Sup.  Ct.  560,  50  L.  ed.  899 
Long  I.  W.  S.  Co.  V.  Brooklyn  (1897)  166  U.  S.  685,  688,  17  Sup.  Ct.  718, 
719,  41  L.  ed.  1165;  Iowa  C.  Ry.  Co.  v.  Iowa  (1896)  160  U.  S.  389,  394,  16 
Sup.  Ct.  344,  345,  40  L.  ed.  467.  See  also  Londoner  v.  Denver  (1908)  210 
U.  S.  373,  379,  28  Sup.  Ct.  708,  711,  52  L.  ed.  1103  (the  two  reports  last 
cited  being  more  complete  than  that  first  cited)  ;  Barrington  v.  Missouri 
(1907)  205  U.  S.  483,  27  Sup.  Ct.  582,  51  L.  ed.  890;  National  C.  O.  Co. 
V.  Texas  (1905)  197  U.  S.  115,  130,  131,  25  Sup.  Ct.  379,  382,  49  L.  ed. 
689;  Forsyth  v.  Hammond  (1897)  166  U.  S.  506,  518,  519,  17  Sup.  Ct.  665, 
670,  41  L.  ed.  1095;  Olsen  v.  Smith  (1904)  195  U.  S.  332,  342,  25  Sup.  Ct. 
52,  54,  49  L.  ed.  224;  W.  W.  Cargill  Co.  v.  Minnesota  (1901)  180  U.  S. 
452,  466,  21  Sup.  Ct.  423,  428,  45  L.  ed.  619;  Maiorano  v.  Baltimore  &  O. 
R.  Co.  (1909)  213  U.  S.  268,  29  Sup.  Ct.  424,  53  L.  ed.  792;  Boston  Cham- 
ber of  Com.  V.  Boston  (1910)  217  U.  S.  189,  194,  30  Sup.  Ct.  459,  460,  54 
L.  ed.  725;  Grenada  L.  Co.  v.  Mississippi  (1910)  217  U.  S.  433,  440,  30 
Sup.  Ct.  535,  538,  54  L.  ed.  826;  Standard  Oil  Co.  v.  Tennessee  (1910)  217 
U.  S.  413,  422,  30  Sup.  Ct.  543,  544,  54  L.  ed.  817;  Consolidated  R.  Co.  v. 
Vermont  (1908)  207  U.  S.  541,  551,  28  Sup.  Ct.  178,  180,  52  L.  ed.  327; 
Gibson  v.  Mississippi  (1896)  162  U.  S.  565,  591,  16  Sup.  Ct.  904,  910,  40 
L.  ed.  1075;  Turpin  v.  Lemon  (1902)  187  U.  S.  51,  57,  23  Sup.  Ct.  20,  23, 
47  L.  ed.  70;  Hooker  v.  Los  Angeles  (1903)  188  U.  S.  314,  319,  23  Sup.  Ct. 
395,  397,  47  L.  ed.  487;  Marchant  v.  Pennsylvania  R.  Co.  (1894)  153  U.  S. 
380,  386,  14  Sup.  Ct.  894,  896,  38  L.  ed.  751;  Hagar  v.  Reclamation  Dist. 
(1884)  111  U.  S.  701,  713,  4  Sup.  Ct.  663,  670,  28  L.  ed.  569.  Compare 
111  U.  S.  708,  4  Sup.  Ct.  667,  28  L.  ed.  572;  Cross  v.  North  Carolina  (1889) 
132  U.  S.  131,  140,  10  Sup.  Ct.  47,  50,  33  L.  ed.  287;  Marx  v.  Hanthorn 
(1893)  148  U.  S.  172,  180,  13  Sup.  Ct.  508,  510,  37  L.  ed.  410  (the  last  of 
which  did  not  arise  under  the  due  process  requirement ) .  On  this  note  see 
also  cases  in  note  77,  infra. 

47  Peters  v.  Broward  (1912)  222  U.  S.  483,  492,  sub  nom.  Peters  v.  Gil- 
christ, 32  Sup.  Ct.  122,  124,  56  L.  ed.  278 ;  Fallbrook  Irr.  Dist.  v.  Bradley 
(1896)  164  U.  S.  112,  154,  155,  17  Sup.  Ct.  56,  61,  62,  41  L.  ed.  369; 
Michigan  C.  R.  Co.  v.  Powers  (1906)  201  U.  S.  245,  291,  26  Sup.  Ct.  459, 
461,  50  L.  ed.  744;  Palmer  v.  Texas   (1909)   212  U.  S.  118.  131.  20  Sup.  Ct. 


134  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Upon  the  same  principle,  the  court  would  not  regard 
the  due  process  clause  of  the  Fifth  Amendment  as  one 
source  of  its  authority  to  inquire  whether  the  action  of 

230,  234,  53  L.  ed.  435;  and  see  authorities  cited  in  Patterson,  The  United 
States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  282. — It  may  also 
be  added  that  in  a  case  coming  from  a  state  court  the  Federal  Supreme 
Court  would  not  inquire  into  the  correctness  of  a  decision  of  the  state 
court  that  the  action  of  an  organ  of  state  government  conformed  to  re- 
quirements of  the  state  constitution  which  were  other  than  procedural: 
Old  C.  T.  Co.  V.  Omaha  (1913)  230  U.  S.  100,  116,  33  Sup.  Ct.  967,  971,  57 
L.  ed.  1410;  City  of  Chicago  v.  Sturges  (1911)  222  U.  S.  313,  321,  32  Sup. 
Ct.  92,  56  L.  ed.  215;  Southwestern  Oil  Co.  v.  Texas  (1910)  217  U.  S.  114, 
118,   119,  30  Sup.  Ct.  490,  497,  54  L.  ed.  688;   Berea  College  v.  Kentucky 

(1908)  211  U.  S.  45,  29  Sup.  Ct.  33,  53  L.  ed.  81;  Hairston  v.  Danville  & 
W.  Ry.  Co.  (1908)  208  U.  S.  598,  605,  28  Sup.  Ct.  331,  334,  52  L.  ed.  637; 
Muller  V.  Oregon  (1908)  208  U.  S.  412,  417,  28  Sup.  Ct.  324,  325,  52  L.  ed. 
551;  Seaboard  A.  L.  Ry.  v.  Seegers  (1907)  207  U.  S.  73,  76,  28  Sup.  Ct.  28, 
29,  52  L.  ed.  108;  Chanler  v.  Kelsey  (1907)  205  U.  S.  466,  27  Sup.  Ct.  550, 
51  L.  ed.  882;  Western  T.  Assn.  v.  Greenberg  (1907)  204  U.  S.  359,  27  Sup. 
Ct.  384,  51  L.  ed.  520;  St.  Mary's  F.-A.  P.  Co.  v.  West  Virginia  (1906)  203 
U.  S.  183,  192,  27  Sup.  Ct.  132,  135,  51  L.  ed.  144;  Jack  v.  Kansas  (1905) 
199  U.  S.  372,  26  Sup.  Ct.  73,  50  L.  ed.  234;  Orr  v.  Oilman  (1902)  183  U. 
S.  278,  283,  22  Sup.  Ct.  213,  217,  46  L.  ed.  213;  Backus  v.  Fort  S.  U.  D. 
Co.  (1898)  169  U.  S.  557,  566,  568,  18  Sup.  Ct.  445,  449,  42  L.  ed.  853; 
Merchants'  &  M.  Bank  v.  Pennsylvania  (1897)  167  U.  S.  461,  17  Sup.  Ct. 
829,  42  L.  ed.  230;  Adams  Ex.  Co.  v.  Ohio  State  Auditor  (1897)  165  U.  S. 
194,  219,  17  Sup.  Ct.  305,  308,  41  L.  ed.  683;  Slaughter  House  Cases  (1873) 
16  Wall.  36,  66,  21  L.  ed.  394.  See  also  Bradley  v.  Richmond  (1913)  227 
U.  S.  477,  33  Sup.  Ct.  318,  57  L.  ed.  603;  Preston  v.  Chicago  (1913)  226 
U.  S.  447,  450,  33  Sup.  Ct.  177,  178,  57  L.  ed.  293;  Moffitt  v.  Kelly  (1910) 
218  U.  S.  400,  405,  31  Sup.  Ct.  79,  80,  81,  54  L.  ed.  1086;  Welch  v.  Swasey 

(1909)  214  U.  S.  91,  104,  29  Sup.  Ct.  567,  570,  53  L.  ed.  923;  Mobile,  J. 
&  K.  C.  R.  Co.  v.  Mississippi  (1908)  210  U.  S.  187,  202,  28  Sup.  Ct.  650, 
655,  52  L.  ed.  1016;  Smithsonian  Inst.  v.  St.  John  (1909)  214  U.  S.  19, 
29  Sup.  Ct.  601,  53  L.  ed.  892;  Maiorano  v.  Baltimore  &  0.  R.  Co.  (1909) 
213  U.  S.  268,  272,  29  Sup.  Ct.  424,  425,  53  L.  ed.  792;  Boston  Chamber  of 
Commerce  v.  Boston  (1910)  217  U.  S.  189,  194,  30  Sup.  Ct.  459,  460,  54 
L.  ed.  725;  and  note  77,  infra.  Compare  the  peculiar  decision  in  Louisville 
&  N.  R.  Co.  V.  Central  S.  Y.  Co.  (1909)  212  U.  S.  132,  29  Sup.  Ct.  246,  53 
L.  ed.  441,  from  which  three  justices  dissented. — On  the  question  whether 
the  state  court  may  by  any  alteration  by  construction  of  the  state  consti- 
tution destroy  any  substantial  rights  which  have  accrued  under  a  valid 
contract:  see  sec.  190,  infra.  Of  course,  until  a  state  court  decides  whether 
a  law  is  or  is  not  in  accordance  with  the  state  constitution,  a  federal  court 
may  pass  upon  the  question  in  cases  in  which  there  is  some  other  basis  for 


EXTENT  OF  THE  RESTEAINT.  135 

an  organ  of  the  federal  government  complied  with  the 
procedural  requirements  of  the  Federal  Constitution  or  a 
federal  statute. 

As  to  both  Amendments  we  may  say  that  the  general 
position  of  the  court  is  expressed  in  the  statement  that 
''consistently  with  the  requirement  of  due  process,  no 
change  in  ancient  procedure  can  be  made  which  disre- 
gards those  fundamental  principles,  to  be  ascertained 
from  time  to  time  by  judicial  action,  which  have  rela- 
tion to  process  of  law  and  protect  the  citizen  in  his  pri- 
vate right,  and  guard  him  against  the  arbitrary  action  of 
the  government. ' '  ^^  The  propriety  of  this  position  will 
be  considered  in  a  later  chapter.^^ 

Procedure  in  establishing  limitations  upon  rates. 

64.  The  Amendments  obviously  do  not  prescribe  any 
course  of  legislative  procedure,^"  and  it  is  not  clear  that 

the  court  to  take  jurisdiction:  see  Fallbrook  Irr.  Dist  v.  Bradley  (1896) 
164  U.  S.  112,  155,  17  Sup.  Ct.  56,  62,  41  L.  ed.  369;  Michigan  C.  R.  Co.  v. 
Powers  (1906)  201  U.  S.  245,  291,  26  Sup.  Ct.  459,  461,  50  L.  ed.  744. 

48  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  101,  29  Sup.  Ct.  14,  20, 
53  L.  ed.  97.  See  also  Hammond  P.  Co.  v.  Arkansas  (1909)  212  U.  S.  322, 
349,  350,  29  Sup.  Ct.  370,  379,  53  L.  ed.  530. 

49  Chapter  4,  infra. 

50  In  Chesapeake  &  P.  T.  Cc.  v.  Manning  (1902)  186  U.  S.  238,  245,  22 
Sup.  Ct.  881,  884,  46  L.  ed.  1144,  the  court  said,  "It  is  well-settled  that  the 
courts  always  presume  that  the  legislature  acts  advisedly  and  with  full 
knowledge  of  the  situation.  Such  knowledge  can  be  acquired  in  other  ways 
than  by  the  formal  investigation  of  a  committee,  and  courts  cannot  inquire 
how  the  legislature  obtained  its  knowledge.  They  must  accept  its  action 
as  that  of  a  body  having  full  power  to  act,  and  only  acting  when  it  has 
acquired  sufficient  information  to  justify  its  action."  The  court  also  speaks 
of  the  conclusiveness  of  the  authentication  of  the  due  passage  of  the  act. 
See  also  St.  Louis  &  S.  F.  R.  Co.  v.  Hadley  (1909)  168  Fed.  317,  353,  354. 
The  position  taken  by  the  Supreme  Court  of  the  United  States  in  the  pas- 
sage quoted  seems  far  more  reasonable  than  that  taken  in  Pennsylvania 
R.  Co.  v.  Philadelphia  County  (1908)  220  Pa.  100,  115,  68  Atl.  676,  679, 
15  L.  R.  A.  N.  S.  108,  117;  Cumberland  T.  &  T.  Co.  v.  Railroad  Comn.  of 


136  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

they  prescribe  any  course  of  procedure  which  must  be  fol- 
lowed by  administrative  bodies  when  establishing  limita- 
tions upon  rates.^^ 

Procedure  in  enforcing  limitations  upon  rates. 

65.  The  determination  of  the  question  whether  or  not 
the  law  has  been  complied  with  is,  however,  entrusted  to 

La.  (1907)  L56  Fed.  823;  Freund,  Constitutional  Limitations  and  Labor 
Legislation,  4  111.  L.  Rev.  609,  622. 

51  In  Mercantile  T.  Co.  v.  Texas  &  P.  Ry.  Co.  (1892)  51  Fed.  529,  541, 
the  circuit  court  criticized  the  procedure  of  the  Texas  commission,  which 
promulgated  schedules  after  a  public  hearing  in  which  there  was  a  general 
discussion  of  rates  but  apparently  no  systematic  treatment  of  the  several 
items  in  the  schedules  afterwards  ordered;  but,  on  appeal,  Reagan  v. 
Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed. 
1014;  Reagan  v.  Mercantile  T.  Co.  (1894)  154  U.  S.  413,  418,  14  Sup.  Ct. 
1060,  1062,  38  L.  ed.  1028,  the  court  of  last  resort  decreed  that  while  the 
schedules  under  review  were  unconstitutionally  low,  the  commission  might 
establish  other  schedules,  and  by  silence  the  court  sanctioned  the  pro- 
cedure of  the  commission.  See  also  Home  T.  &  T.  Co.  v.  Los  Angeles,  infra; 
Bauman  v.  Ross  (1897)  167  U.  S.  548,  593,  17  Sup.  Ct.  966,  983,  42  L.  ed. 
270;  Southern  P.  Co.  v.  Board  of  R.  Comrs.  (1896)  78  Fed.  236,  258;  con- 
curring opinion  in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134 
U.  S.  418,  460,  10  Sup.  Ct.  462,  703,  33  L.  ed.  970.  Compare  opinion  of 
court  in  latter  case,  134  U.  S.  457,  10  Sup.  Ct.  467,  33  L.  ed.  981;  San 
Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S.  739,  19  Sup.  Ct.  804, 
43  L.  ed.  1154.  In  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265, 
278,  29  Sup.  Ct.  50,  54,  53  L.  ed.  176,  the  court  said,  "Rate  regulation  is 
purely  a  legislative  function  and,  even  where  exercised  by  a  subordinate 
body  upon  which  it  is  conferred,  the  notice  and  hearing  essential  in  judi- 
cial proceedings  and,  for  peculiar  reasons,  in  some  forms  of  taxation 
would  not  seem  to  be  indispensable.  It  may  be  that  the  authority  to  regu- 
late rates,  conferred  upon  the  city  council  by  sec.  31  of  the  charter,  is  not 
an  authority,  arbitrarily,  and  without  investigation,  to  fix  rates  of  charges, 
and  that  if  charges  were  fixed  in  that  manner  the  act  would  be  beyond  the 
authority  of  the  council.  It  is  not  unlikely  that  the  California  courts  would 
give  this  construction  to  the  ordinance.  Acting  within  the  authority  thus 
limited  it  would  seem  that  the  character  and  extent  of  the  investigation 
made  and  notice  and  hearing  afforded,  in  the  exercise  of  this  legislative 
function,  would  be  left  to  the  discretion  of  the  body  exercising  it.  .  .  . 
But  we  need  not  now  decide  whether  notice  and  hearing  were  required. 
Both  were  given  in  this  case.  ...  If  notice  and  an  opportunity  to  be 
heard  were  indispensable,  which  we  do  not  decide,  it  is  enough  that,  al- 


EXTENT  OF  THE  RESTRAINT.  137 

the  courts.^^  "Due  process  requires  that  the  court  which 
assumes  to  detemiine  the  rights  of  parties  shall  have  jur- 
isdiction,^^ and  that  there  shall  be  notice  and  opportunity 
for  hearing  given  the  parties.^'*  Subject  to  these  two  fun- 
damental conditions,  which  seem  to  be  universally  pre- 
scribed in  all  systems  of  law  established  by  civilized  coun- 

though  the  charter  be  silent,  such  notice  and  hearing  were  afforded  by 
ordinance,  as  in  this  case."     Consider  note  in  19  Harv.  L.  Rev.  at  607. 

52  Interstate  Com.  Comn.  v.  Brimson  (1894)  154  U.  S.  447,  485,  14  Sup. 
Ct.  1125,  1136,  38  L.  ed.  1047;  concurring  opinion  in  Winchester  &  S.  R. 
Co.  V.  Commonwealth  (1906)  106  Va.  264,  281,  55  S.  E.  692,  698.  Compare 
discussion  in  Louisville  &  N.  R.  Co.  v.  Shiler   (1911)   186  Fed.  176. 

53Pennoyer  v.  Neff  (1877)  95  U.  S.  714,  733,  24  L.  ed.  565;  Scott  v.  Mc- 
Neal  (1894)  154  U.  S.  34,  14  Sup.  Ct.  1108,  38  L.  ed.  896;  Old  W.  M.  L. 
Assn.  V.  McDonough  (1907)  204  U.  S.  8,  27  Sup.  Ct.  236,  51  L.  ed.  345. 
See  also  authorities  cited  in  section  104,  infra. 

54Hovey  v.  Elliott  (1897)  167  U.  S.  409,  17  Sup.  Ct.  841,  42  L.  ed.  215; 
Roller  V.  Holly  (1900)  176  U.  S.  398,  20  Sup.  Ct.  410,  44  L.  ed.  520;  and 
see  Londoner  v.  Denver  (1908)  210  U.  S.  373,  28  Sup.  Ct.  708,  52  L.  ed. 
1103.  See  also  Ochoa  v.  Hernandez  y  Morales  (1913)  230  U.  S.  139,  33 
Sup.  Ct.  1033,  57  L.  ed.  1427;  United  States  ex  rel.  Turner  v.  Fisher  (1911) 
222  U.  S.  204,  32  Sup.  Ct.  37,  56  L.  ed.  165;  Garfield  v.  Goldsby  (1908)  211 
U.  S.  249,  29  Sup.  Ct.  62,  53  L.  ed.  168 ;  Central  of  Ga.  Ry.  Co.  v.  Wright 
(1907)  207  U.  S.  127,  28  Sup.  Ct.  47,  52  L.  ed.  134;  Wetmore  v.  Karrick 
(1907)  205  U.  S.  141,  27  Sup.  Ct.  434,  51  L.  ed.  745.  Compare  Mover  v. 
Peabody  (1909)  212  U.  S.  78,  29  Sup.  Ct.  235,  53  L.  ed.  410;  Hammond 
P.  Co.  V.  Arkansas  (1909)  212  U.  S.  322,  349-351,  29  Sup.  Ct.  370,  379, 
380,  53  L.  ed.  530;  Washington  ex  rel.  Oregon  R.  &  N.  Co.  v.  Fairchild 
(1912)  224  U.  S.  510,  32  Sup.  Ct.  535,  56  L.  ed.  863;  American  L.  Co.  v. 
Zeiss  (1911)  219  U.  S.  47,  71,  31  Sup.  Ct.  200,  209,  55  L.  ed.  82;  North  A. 
C.  S.  Co.  V.  Chicago  (1908)  211  U.  S.  306,  29  Sup.  Ct.  101,  53  L.  ed.  195; 
Home  T.  &  T.  Co  v.  Los  Angeles  (1908)  211  U.  S.  265,  29  Sup.  Ct.  50,  53  L. 
ed.  176;  Jacob  v.  Roberts  (1912)  223  U.  S.  261,  265,  32  Sup.  Ct.  303,  305, 
56  L.  ed.  429;  Longyear  v.  Toolan  (1908)  209  U.  S.  414,  28  Sup.  Ct.  506, 
52  L.  ed.  859;  Ballard  v.  Hunter  (1907)  204  U.  S.  241,  262,  27  Sup.  Ct. 
261,  269,  51  L.  ed.  461;  Felts  v.  Murphy  (1906)  201  U.  S.  123,  26  Sup.  Ct. 
366,  50  L.  ed.  689.  "Even  although  the  power  of  a  state  legislature  to 
prescribe  length  of  notice  is  not  absolute,  yet  it  is  certain  'that  only  in  a 
clear  case  will  a  notice  authorized  by  the  legislature  be  set  aside  as  wholly 
ineffectual  on  account  of  the  shortness  of  the  time:'"  Goodrich  v.  Fer- 
ris (1909)  214  U.  S.  71,  81,  29  Sup.  Ct.  580,  583,  53  L.  ed.  914,  citing 
Bellingham  B.  &  B.  C.  R.  Co.  v.  New  Whatcom  (1899)  172  U.  S.  314,  318, 
19  Sup.  Ct.  205,  206,  43  L.  ed.  460. 


138  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

tries,  this  court  has  up  to  this  time  sustained  all  state 
laws,  statutory  or  judicially  declared,  regulatiug  proced- 
ure, evidence  and  methods  of  trial,  and  held  them  to  be 
consistent  with  due  process  of  law."°^  ''The  cases  pro- 
ceed upon  the  theory  that,  given  a  court  of  justice  which 
has  jurisdiction,  and  acts,  not  arbitrarily,  but  in  conform- 
ity with  a  general  law,  upon  evidence,  and  after  inquiry 
made  with  notice  to  the  parties  affected  and  opportunity 
to  be  heard,  then  all  the  requirements  of  due  process,  so 
far  as  it  relates  to  procedure  in  court  and  methods  of  trial 
and  character  and  effect  of  evidence,  are  complied 
with."5« 

Provision  regarded  as  a  substantive  restraint. 

66.  As  we  have  already  said,  the  court  holds  that  the 
due  process  provision  relates  not  only  to  procedure  but 
also  to  substantive  law.  It  declares  that  men  possess 
rights  to  life,  liberty  and  property  of  which,  by  virtue  of 
the  due  process  clauses,  they  may  not  be  deprived  im- 
properly by  any  organ  of  state  or  federal  govemment.^^ 

55  Twilling  V.  New  Jersey  (1908)  211  U.  S.  78,  110,  111,  29  Sup.  Ct.  14, 
24,  53  L.  ed.  97,  citing  a  number  of  authorities  in  support  of  the  state- 
ment. See  also  Jordan  v.  Massachusetts  (1912)  225  U.  S.  167,  32  Sup. 
Ct.  651,  56  L.  ed.  1038;  Standard  Oil  Co.  v.  Missouri  (1912)  224  U.  S.  270, 
287,  32  Sup.  Ct.  406,  411,  56  L.  ed.  760;  American  L.  Co.  v.  Zeiss  (1911) 
219  U.  S.  47,  71,  31  Sup.  Ct.  200,  209,  55  L.  ed.  82;  Reetz  v.  Michigan  (1903) 
188  U.  S.  505,  508,  23  Sup.  Ct.  390,  392,  47  L.  ed.  563;  Ex  parte  Wall 
(1883)   107  U.  S.  265,  289,  2  Sup.  Ct.  569,  589,  27  L.  ed.  552. 

56 Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  111,  29  Sup.  Ct.  14,  25, 
53  L.  ed.  97.  The  court  then  quotes  from  several  opinions.  See  also  Brad- 
ley V.  Richmond  (1913)  227  U.  S.  477,  33  Sup.  Ct.  318,  57  L.  ed.  603, 
and  editorial  The  Menace  of  Law,  The  Independent,  Aug.,  1912,  281.  Com- 
pare Interstate  Com.  Comn.  v.  Louisville  &  N.  R.  Co.  (1913)  227  U.  S. 
88,  33  Sup.  Ct.  185,  57  L.  ed.  431. 

57  On  the  statement  that  the  provision  restricts  all  departments  of  gov- 
ernment see  sec.  74,  infra;  Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.  (1855) 
18  How.  272,  276,  15  L.  ed.  372;  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  (1897) 


EXTENT  OF  THE  RESTRAINT.  139 

Its  position  is  not  merely  that  if  there  is  any  deprivation 
it  must  take  place  in  a  proper  manner.  The  provision  is 
not  sufficiently  complied  with  by  a  mere  observance  of 
formalities.^^    There  must  be  a  proper  occasion  for  the 

166  U.  S.  226,  233,  234,  17  Sup.  Ct.  581,  583,  41  L.  ed.  979;  Hovey  v.  El- 
liott (1897)  167  U.  S.  409,  417,  17  Sup.  Ct.  841,  844,  42  L.  ed.  215;  and 
also  Westervelt  v.  Gregg  (1854)  12  N.  Y.  202,  212;  Bank  of  Columbia  v. 
Okely  (1819)  4  Wheat.  235,  244,  4  L.  ed.  559.  Compare  Walker  v.  Sauvi- 
net  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678. 

58  See  language  used  in  Long  I.  W.  S.  Co.  v.  Brooklyn  (1897)  166  U.  S. 
685,  695,  17  Sup.  Ct.  718,  722,  41  L.  ed.  1165;  Loehner  v.  New  York  (1905) 
198  U.  S.  45,  56,  25  Sup.  Ct.  539,  542,  49  L.  ed.  937;  Fayerweather  v. 
Ritch  (1904)  195  U.  S.  276,  297,  298,  25  Sup.  Ct.  58,  63,  64,  49  L.  ed.  193; 
Simon  v.  Craft  (1901)  182  U.  S.  427,  436,  21  Sup.  Ct.  836,  839,  45  L.  ed. 
1165;  and  also  King  v.  Hatfield  (1900)  130  Fed.  564,  582;  Scott  v.  City  of 
Toledo  (1888)  36  Fed.  385,  393,  1  L.  R.  A.  688;  decisions  to  the  same 
effect  in  Eubank  v.  Richmond  (1913)  226  U.  S.  137,  33  Sup.  Ct.  76,  57  L. 
ed.  156;  Washington  ex  rel.  Oregon  R.  &  N.  Co.  v.  Fairchild  (1912)  224 
U.  S.  510,  32  Sup.  Ct.  535,  56  L.  ed.  863;  Choate  v.  Trapp  (1912)  224  U. 
S.  665,  32  Sup.  Ct.  565,  56  L.  ed.  941;  Missouri  P.  Ry.  Co.  v.  Nebraska 
(1910)  217  U.  S.  196,  30  Sup.  Ct.  461,  54  L.  ed.  727;  Western  U.  T.  Co. 
V.  Kansas  (1910)  216  U.  S.  1,  30  Sup.  Ct.  190,  54  L.  ed.  355;  Pullman  Co. 
V.  Kansas  (1910)  216  U.  S.  56,  30  Sup.  Ct.  232,  54  L.  ed.  378;  Ludwig  v. 
Western  U.  T.  Co.  (1910)  216  U.  S.  146,  30  Sup.  Ct.  280,  54  L.  ed.  423; 
Selliger  v.  Kentucky  (1909)  213  U.  S.  200,  29  Sup.  Ct.  449,  53  L.  ed.  761; 
Louisville  &  N.  R.  Co.  v.  Central  S.  Y.  Co.  (1909)  212  U.  S.  132,  29  Sup. 
Ct.  246,  53  L.  ed.  441;  Adair  v.  United  States  (1908)  208  U.  S.  161,  28 
Sup.  Ct.  277,  52  L.  ed.  436;  Raymond  v.  Chicago  U.  T.  Co.  (1907)  207  U. 
S.  20,  28  Sup.  Ct.  7,  52  L.  ed.  78;  Buck  v.  Beach  (1907)  206  U.  S.  392,  27 
Sup.  Ct.  712,  51  L.  ed.  1106;  Otis  Co.  v.  Ludlow  M,  Co.  (1906)  201  U.S.  140, 
26  Sup.  Ct.  353,  50  L.  ed.  696;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  ( 1906)  200 
U.  S.  561,  26  Sup.  Ct.  241,  50  L.  ed.  596;  Loehner  v.  New  York  (1905) 
198  U.  S.  45,  25  Sup.  Ct.  539,  49  L.  ed.  937;  Dobbins  v.  Los  Angeles  (1904) 
195  U.  S.  223,  25  Sup.  Ct.  18,  49  L.  ed.  169;  Prout  v.  Starr  (1903)  188 
U.  S.  537,  23  Sup.  Ct.  398,  47  L.  ed.  584;  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Tompkins  (1900)  176  U.  S.  167,  20  Sup.  Ct.  336,  44  L.  ed.  417;  Green  B. 
&  M.  C.  Co.  V.  Patten  P.  Co.  (1898)  172  U.  S.  58,  82,  19  Sup.  Ct.  97,  106, 
43  L.  ed.  364  (1899)  173  U.  S.  179,  19  Sup.  Ct.  316,  43  L.  ed.  658;  All- 
geyer  v.  Louisiana  (1897)  165  U.  S.  578,  17  Sup.  Ct.  427,  41  L.  ed.  832; 
Missouri  P.  Ry.  Co.  v.  Nebraska  (1896)  164  U.  S.  403,  17  Sup.  Ct.  130, 
41  L.  ed.  489;  Kaukauna  W.  P.  Co.  v.  Green  B.  &  M.  C.  Co.  (1891)  142 
U.  S.  254,  269,  271,  12  Sup.  Ct.  173,  176,  177,  35  L.  ed.  1004;  Railroad 
Comn.  of  Louisiana  v.  Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414,  29 
Sup.  Ct.  357,  53  L.  ed.  577;  and  cases  cited  in  notes  19  to  23,  supra.     But 


140  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

deprivation,  of  which  a  taking  by  way  of  punishment  is 
one  illustration,  and  if  property  is  taken  for  public  use 
there  must,  at  least  as  a  general  rule,  be  just  compensa- 
tion. And  the  court  holds  that,  with  limitations  asserted 
in  some  cases,  the  propriety  of  the  taking  is  subject  to  ju- 
dicial review. 

No  complete  general  statement  as  to  restraint. 

67.  But  beyond  those  points  the  extent  of  the  restraint 
which  the  clauses  are  said  to  impose  is  not  altogether  defi- 
nite. The  court  has  not  stated  any  clear  general  test  of 
the  existence  of  rights  or  the  propriety  of  deprivations. 
It  has  not  attempted  to  show  the  boundaries  of  the  re- 
straint by  any  definite  and  comprehensive  statement.^^ 
It  has,  instead,  been  content  to  mark  the  scope  of  the  pro- 
vision by  ''the  gradual  process  of  judicial  inclusion  and 
exclusion, "  ^°   in  which  the   decisions  certainly  do  not 

compare  Fallbrook  Irr.  Dist.  v.  Bradley  (1896)  164  U.  S.  112,  157,  158, 
17  Sup.  Ct.  56,  62,  63,  41  L.  cd.  369;  Missouri  P.  Ry.  Co.  v,  Humes, 
(1885)  115  U.  S.  512,  520,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463;  Walker  v. 
Sauvinet  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678;  concurring  opinion  in 
Taylor  and  Marshall  v.  Beckham  (1900)  178  U.  S.  548,  585,  20  Sup.  Ct. 
890,  1009,  903,  904,  44  L.  ed.  1187. 

59  See  Ballard  v.  Hunter  (1907)  204  U.  S.  241,  255,  27  Sup.  Ct.  261,  266, 
51  L.  ed.  461;  Holden  v.  Hardy  (1898)  169  U.  S.  366,  389,  18  Sup.  Ct. 
383,  387,  42  L.  ed.  780;  Eubank  v.  Richmond  (1912)  226  U.  S.  137,  143, 
33  Sup.  Ct.  76,  77,  57  L.  ed.  156;  Twining  v.  New  Jersey  (1908)  211  U. 
S.  78,  101,  29  Sup.  Ct.  14,  20,  53  L.  ed.  97;  Orient  Ins.  Co.  v.  Daggs  (1899) 
172  U.  S.  557,  563,  19  Sup.  Ct.  281,  283,  43  L.  ed.  552;  Missouri  P.  Ry.  Co. 
V.  Humes  (1885)   115  U.  S.  512,  519,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463. 

60  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  104,  24  L,  ed.  616; 
Hagar  v.  Reclamation  Dist.  (1884)   111  U.  S.  701,  707,  4  Sup.  Ct.  663,  667, 

28  L.  ed.  569.     See  also  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  100, 

29  Sup.  Ct.  14,  20,  53  L.  ed.  97;  Missouri  P.  Ry.  Co.  v.  Humes  (1885)  115 
U.  S.  512,  519,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463;  Noble  State  Bank  v. 
Haskell  (1911)  219  U.  S.  104,  110,  112,  31  Sup.  Ct.  186,  188,  55  L.  ed. 
112;  Hudson  C.  W.  Co.  v.  McCarter  (1908)  209  U.  S.  349,  355,  28  Sup. 
Ct.  529,  531,  52  L.  ed.  828;  Freeland  v.  Williams  (1889)  131  U.  S.  405, 
418,  9  Sup.  Ct.  763,  707,  33  L.  ed.  193;  Johnson  v.  United  States    (1913) 


EXTENT  OF  THE  RESTKAINT.  141 

show  a  thoroughly  uniform  tendency.*'^  And  while  it  is 
possible  to  classify  most  of  the  decisions  which  have  been 
based  upon  the  provision  and  to  state  some  definite  rules, 
it  is  not  yet  possible  to  unify  the  several  lines  of  decision 
and  to  draw  from  them  a  clear  and  complete  statement  of 
the  general  extent  of  the  restraint.^^ 

228  U.  S.  457,  458,  33  Sup.  Ct.  572,  57  L.  ed.  919;  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Davis  (1904)  132  Fed.  629,  633;  Saxton  Nat.  Bank  v.  Carswell 
(1895)  126  Mo.  436,  442,  29  S.  W.  279,  280;  Mayor  v.  Scharf  (1880)  54 
Md.  499,  517;  note  62,  infra. 

61  Observe  the  conflict  in  decisions  in  cases  cited  in  note  43,  supra;  in 
section  68,  infra;  and  in  sees.  92-106,  infra.  See  also,  for  example,  the 
different  tendencies  shown  in  Bacon  v.  Walker  (1907)  204  U.  S.  311,  27 
Sup.  Ct.  289,  51  L.  ed.  499;  McLean  v.  Arkansas  (1909)  211  U.  S.  539,  29 
Sup.  Ct.  206,  53  L.  ed.  315;  Heath  &  Milligan  Mfg.  Co.  v.  Worst  (1907) 
207  U.  S.  338,  357,  28  Sup.  Ct.  114,  120,  52  L.  ed.  236,  where  statutes  were 
upheld;  in  Lochner  v.  New  York  (1905)  198  U.  S.  45,  25  Sup.  Ct.  539, 
49  L.  ed.  937,  where,  as  Holmes,  J.,  suggested,  dissenting  (198  U.  S.  75,  25 
Sup.  Ct.  546,  49  L.  ed.  949),  the  court  seemed  to  regard  the  Fourteenth 
Amendment  as  an  enactment  of  Herbert  Spencer's  Social  Statics;  and  in 
the  dissenting  opinion  of  Brewer,  J.,  in  Budd  v.  New  York  ( 1892 )  143  U. 
S.  517,  551,  12  Sup.  Ct.  468,  478,  36  L.  ed.  247.  "In  the  line  of  decisions 
under  the  Fourteenth  Amendment  uncertainty  has  been  the  rule:"  Col- 
lins, The  Fourteenth  Amendment  and  the  States,  119.  See  also  ibid,  117, 
118,  120-124.  That  author  discussss  the  question,  especially  comparing 
the  decisions  and  the  opinions  in  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  (1897) 
165  U.  S.  150,  17  Sup.  Ct.  255,  41  L.  ed.  666,  and  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Matthews  (1899)  174  U.  S.  96,  19  Sup.  Ct.  609,  43  L.  ed.  909,  saying 
(p.  124),  "Each  side — not  of  the  attorneys — but  of  the  members  of  the 
Supreme  Court  itself,  cited  numerous  precedents.  If  precedents  could  es- 
tablish the  law  under  the  Amendment,  both  sides  were  right  in  each  case." 
And  see  note  73,  infra. 

62  "Cases  under  the  Amendment  began  coming  before  that  tribunal  as 
early  as  1873,  but  the  court  thought  it  wiser  to  leave  the  definition  of  the 
scope  and  the  meaning  of  its  terms  to  the  operation  of  the  doctrine  of  stare 
decisis  rather  than  to  attempt  a  definition  of  the  whole  provision  outright. 
Thus  by  the  gradual  process  of  judicial  inclusion  and  exclusion  it  was  in- 
tended that  there  should  be  accumulated  in  the  course  of  time  a  long  line 
of  judicial  precedents  based  on  concrete  cases  presented  for  decision,  which 
would  in  themselves  define  the  terms  of  the  Amendment.  .  .  .  From 
the  adoption  of  the  Amendment  in  1868  to  the  close  of  the  1910-1911  Term 
of  the  Supreme  Court,  six  hundred  and  four  opinions  have  been  delivered 
imder  section  one  of  that  article.     We  have  now  a  line  of  decisions  run- 


142  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Particular  lines  of  decision. 

68.  The  court  has  said  broadly  that  the  clauses  forbid 
the  deprivation  of  the  substance  of  individual  rights  to 
life,  liberty  or  property  by  any  organ  of  government  by 
any  method  whatever.®^  But  in  almost  all  of  the  cases 
which  have  arisen  under  the  due  process  clauses  the  court 
has  given  to  those  clauses  other  interpretations,  not  avow- 
edly, at  least,  by  way  of  elaboration  or  illustration  of  that 
indefinite  statement  but  independently.  Thus  it  has  said 
that  the  clauses  prohibit  the  taking  of  private  property 
for  public  use  without  just  compensation,^^  and,  there- 
fore, prohibit  the  limiting  of  the  charges  of  railroad  com- 
panies to  an  improper  extent.*'^  It  has  also  said  in  other 
cases  that  the  clauses  forbid  the  enforcement  of  unrea- 
sonable regulations,^^  a  regulation  of  railroad  charges  be- 
ing unreasonable  if  it  does  not  yield  a  sufficient  rate  of  re- 

ning  back  for  forty-one  years.  Has  the  doctrine  of  stare  decisis  effected 
a  definition  of  the  Amendment?  Is  its  sphere  of  operation  now  known? 
These  questions  must  be  answered  in  the  negative.  After  forty  years  from 
the  date  of  the  adoption  of  the  Amendment,  Mr.  Justice  Moody,  in  deliv- 
ering the  opinion  of  the  court  in  a  recent  case,  could  say:  'The  Four- 
teenth Amendment  withdrew  from  the  states  powers  theretofore  enjoyed 
by  them,  to  an  extent  not  yet  fully  ascertained.'  (Twining  v.  Xew  Jersey 
(1908)  211  U.  S.  78,  92,  29  Sup.  Ct.  14,  16,  17,  53  L.  ed.  97.)  In  a  still 
more  recent  case,  after  five  hundred  and  sixty-seven  cases  involving  an 
interpretation  of  the  'due  process  of  law'  clause  under  the  Amendment  had 
been  considered  by  the  court,  Mr.  Justice  Holmes,  in  delivering  the  opinion, 
said,  'What  is  due  process  of  law  depends  on  the  circumstances.'  (Meyer 
V.  Peabody  (1909)  212  U.  S.  78,  84,  29  Sup.  Ct.  235,  236,  53  L.  ed.  410.) 
We  have  made  but  little  progress  in  reaching  even  a  working  definition  of 
section  one  of  the  Fourteenth  Amendment  under  the  principle  of  stare 
decisis:"  Collins,  The  Fourteenth  Amendment  and  the  States,  112,  113, 
114.  "That  clause  is  already  a  catch-all,  overflowing  with  misplaced  prin- 
ciples:" Wigmore,  Evidence,  p.  3102,  note.  See  also  notes  14,  supra,  and  73, 
infra. 

<>3  See  sec.  72,  infra. 

64  See  sec.  119,  infra. 

G5  See  notes  150,  165  in  Chapter  4,  infra. 

66  See  sec.  105,  infra. 


EXTENT  OF  THE  RESTRAINT.  143 

turn  to  the  carrier,^"  or,  apparently,  if  the  court  considers 
it  unjustifiable  for  any  other  reason.^^  And,  in  cases  in 
which  railroad  charges  were  not  involved,  the  court  has 
condemned  regulations  upon  the  ground  that  they  were 
discriminatory;  ^^  it  has  spoken  of  acts  beyond  the  scope 
of  governmental  authority; '^^  and,  while  it  does  not  in- 
quire whether  legislators  were  influenced  by  improper 
motives,'^^  it  has  said  that  administrative  decisions  were 
final  because  fraud  was  not  provedJ^ 

Therefore,  instead  of  making  a  definite  statement  as  to 
the  general  scope  of  the  provision,  it  has  been  necessary 
for  us  to  state  a  rather  vague  general  proposition  and  then 
call  attention  to  several  narrower  lines  of  decision  which, 
unless  with  rare  exceptions,  have  not  avowedly  been  made 
by  way  of  elaboration  or  illustration  of  any  one  underly- 
ing principle  which  is  common  to  all  the  cases. "^ 

67  See  note  165  in  Chapter  4,  infra. 

68  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct. 
565,  43  L.  ed.  858. 

69  See  sec.  89,  infra. 

70  See  sec.  104,  infra. 

71  See  sec.  90,  infra. 

72  See  sec.  90,  infra. 

73  See  notes  14,  62,  supra.  "The  modern  concept  of  due  process  of  law  is 
not  a  legal  concept  at  all;  it  comprises  nothing  more  or  less  than  a  roving 
commission  to  judges  to  sink  whatever  legislative  craft  may  appear  to  them 
to  be,  from  the  standpoint  of  vested  interests,  of  a  piratical  tendency:"  E. 
A.  Corwin,  book  review  in  6  Am.  Pol.  Sci.  Rev.  271.  "We  have  very  effect- 
ually disposed  of  the  last  safeguard  against  the  establishment  of  a  judicial 
veto  upon  any  and  all  acts  of  our  legislative  assemblies  by  discarding  the 
rule  that  the  courts  must  limit  their  inquiry  to  the  question  of  the  existence 
of  the  power  which  the  legislature  has  undertaken  to  exercise,  and  that 
where  the  power  exists  its  exercise  is  beyond  the  judicial  sphere  of  in- 
fluence. The  courts  now  openly  review  the  use  made  by  the  legislature  of 
its  conceded  powers,  thus  arrogating  to  themselves  a  distinctly  legislative 
function.  The  result  of  all  these  changes  may  be  summed  up  in  a  sentence. 
There  are  now  no  such  'plain  and  simple'  rules  of  interpretation  as  Judge 
Lurton  claims;  on  the  contrary,  there  are  now  practically  no  rules  at  all. 
Each  case  is  supposed  to  stand  'on  its  own  merits,'  which,  translated  into 


144  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

Detailed  application  of  rules. 

69.  The  application  of  the  rules  which  have  been  set 
forth  in  this  chapter  to  questions  of  procedure  have  al- 
ready been  stated  with  sufficient  fulness.  The  detailed 
application  of  the  rules  of  substantive  law  so  far  as  they 
relate  to  rate  regulation  will  be  considered  at  greater 
length  in  a  subsequent  chapter.'^^ 

Different  tests  of  constitutionality. 

70.  In  the  cases  which  we  have  noted  the  court  has  con- 
sidered the  effect  of  the  governmental  action  or  its  pro- 
priety.'^^ But  the  court  does  not  always  give  weight  to 
such  considerations.  In  other  cases  it  has  said  that  ques- 
tions of  power  do  not  depend  upon  the  extent  to  which  it 
may  be  exercised.'^ ^    And  it  has  often  held  that  an  erron- 

ordinary  English,  simply  means  that  each  law  is  declared  'constitutional' 
or  'unconstitutional'  according  to  the  opinion  the  judges  entertain  as  to 
its  wisdom.  This  is  another  reason  for  the  fact  that  almost  all  important 
constitutional  cases  are  now  decided  by  divided  courts.  Since  there  are  no 
longer  any  set  rules  by  which  the  judges  can  be  guided,  since  they  are  left 
to  determine  the  propriety  or  wisdom  of  laws  according  to  the  canons  of 
politics  and  statesmanship,  they  naturally  exhibit  those  differences  of  opin- 
ion which  we  expect  to  find  in  legislative  bodies.  This  leads  our  Supreme 
Court  as  well  as  our  other  courts  into  the  position — -anomalous  and  absurd 
for  a  court,  though  perfectly  proper  for  a  legislature — of  deciding  in  dif- 
ferent ways  cases  similar  in  principle:"  Boudin,  Government  by  Judiciary, 
26  Pol.  Sci.  Quar.  238,  267.     Compare  note  116  in  Chapter  4,  infra. 

74  Chapter  6,  infra. 

75  See  also  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wynne  (1912)  224  U.  S.  354, 
32  Sup.  Ct.  493,  56  L.  ed.  799.  Compare  Chin  Yow  v.  United  States  (1908) 
208  U.  S.  8,  28  Sup.  Ct.  201,  52  L.  ed.  369,  an  immigration  case,  in  which 
the  court  said  that  "unless  and  until  it  is  proved  to  the  satisfaction  of  the 
judge  that  a  hearing  properly  so  called  was  denied,  the  merits  of  the  case 
are  not  open,  and,  we  may  add,  the  denial  of  a  hearing  cannot  be  estab- 
lished by  proving  that  the  decision  was  wrong."  And  compare  note  61, 
supra;  note  64  in  Chapter  4,  infra. 

76  Brown  v.  Maryland  (1827)  12  Wheat.  419,  439,  6  L.  ed.  678;  McCray 
V.  United  States  (1904)  195  U.  S.  27,  56,  24  Sup.  Ct.  769,  776,  49  L.  ed. 
78,  and  cases  there  cited;  Flint  v.  Stone  Tracy  Co.   (1911)   220  U.  S.  107, 


EXTENT  OF  THE  RESTRAINT.  145 

eous  judicial  action  does  not  for  that  reason  violate  the 
due  process  provision,'^''^  and  it  has  so  decided  even  in 

153,  154,  158,  31  Sup.  Ct.  342,  350,  352,  55  L.  ed.  389;  Missouri  P.  Ry.  Co. 
V.  Kansas  (1910)  216  U.  S.  262,  282,  30  Sup.  Ct.  330,  337,  54  L.  ed.  472; 
Munn  V.  Illinois   (1876)   94  U.  S.  113,  134,  24  L.  ed.  77;   Sweet  v.  Rechel 

(1895)  159  U.  S.  380,  393,  16  Sup.  Ct.  43,  46,  40  L.  ed.  188;  United  States 
V.  Delaware  &  H.  Co.  (1909)  213  U.  S.  366,  405,  29  Sup.  Ct.  527,  535,  53 
L.  ed.  836;  Moyer  v.  Peabody  (1909)  212  U.  S.  78,  29  Sup.  Ct.  235,  53  L. 
ed.  410.  See  also  Appleby  v.  Buffalo  (1911)  221  U.  S.  524,  31  Sup.  Ct. 
699,  55  L.  ed.  838;  McGovern  v.  City  of  New  York  (1913)  229  U.  S.  363, 
371,  33  Sup.  Ct.  876,  877,  57  L.  ed.  1228.  Compare  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Wynne  (1912)  224  U.  S.  354,  32  Sup.  Ct.  493,  56  L.  ed.  799;  Atlantic 
C.  L.  R.  Co.  V.  North  Carolina  Corp.  Comn.  (1907)  206  U.  S.  1,  20,  27  Sup. 
Ct.  585,  592,  51  L.  ed.  933;  McCray  v.  United  States  (1904)  195  U.  S.  27, 
56,  59-61,  64,  24  Sup.  Ct.  769,  776,  778,  780,  49  L.  ed.  78 ;  and  also  Waters- 
Pierce  0.  Co.  V.  Texas  (1909)  212  U.  S.  86,  29  Sup.  Ct.  220,  53  L.  ed.  417; 
Corwin,  Due  Process  of  Law  Before  the  Civil  War,  24  Harv.  L.  Rev.  at 
469;  Corwin,  The  Supreme  Court  and  the  Fourteenth  Amendment,  7  Mich. 
L.  Rev.  at  670;  note  73,  supra. 

77Arrowsmith  v.  Harmoning  (1886)  118  U.  S.  194,  6  Sup.  Ct.  1023,  30 
L.  ed.  243;  In  re  Converse  (1891)  137  U.  S.  624,  11  Sup.  Ct.  191,  34  L.  ed. 
796;  Patterson  v.  Colorado  (1907)  205  U.  S.  454,  461,  27  Sup.  Ct.  556,  557, 
51  L.  ed.  879;  McGovern  v.  City  of  New  York  (1913)  229  U.  S.  363,  371, 
33  Sup.  Ct.  876,  877,  57  L.  ed.  1228;  Bonner  v.  Gorman  (1909)  213  U.  S. 
86,  91,  29  Sup.  Ct.  483,  484,  53  L.  ed.  709;   Sauer  v.  City  of  New  York 

(1907)  206  U.  S.  536,  543,  545,  27  Sup.  Ct.  683,  688,  689,  51  L.  ed.  1176; 
Ballard  v.  Hunter  (1907)  204  U.  S.  241,  258,  27  Sup.  Ct.  261,  267,  41  L. 
ed.  461 ;  Howard  v.  Kentucky  ( 1906)  200  U.  S.  164,  26  Sup.  Ct.  189,  50  L.  ed. 
421 ;  Rogers  v.  Peck  ( 1905 )  199  U.  S.  425,  26  Sup.  Ct.  87,  50  L.  ed.  256 ;  Backus 
V.  Fort  S.  U.  D.  Co.  ( 1898)  169  U.  S.  557,  576,  18  Sup.  Ct.  445,  452,  42  L.  ed. 
853;  Central  L.  Co.  v.  Laidley  (1895)  159  U.  S.  103,  16  Sup.  Ct.  80,  40  L. 
ed.  91;  Bergemann  v.  Backer  (1895)  157  U.  S.  655,  15  Sup.  Ct.  727,  39  L. 
ed.  845;  Baltimore  T.  Co.  v.  Baltimore  B.  R.  Co.  (1894)  151  U.  S.  137,  14 
Sup.  Ct.  294,  38  L.  ed.  102;  Lent  v.  Tillson  (1891)  140  U.  S.  316,  331,  11 
Sup.  Ct.  825,  831,  35  L.  ed.  419;  Marrow  v.  Brinkley  (1889)  129  U.  S. 
178,  9  Sup.  Ct.  267,  32  L.  ed.  954.     See  also  Chin  Yow  v.  United  States 

(1908)  208  U.  S.  8,  28  Sup.  Ct.  201,  52  L.  ed.  369;  In  re  Manning  (1891) 
139  U.  S.  504,  11  Sup.  Ct.  624,  35  L.  ed.  264;  Fallbrook  Irr.  Dist.  v.  Bradley 

(1896)  164  U.  S.  112,  157,  168,  17  Sup.  Ct.  56,  62,  66,  67,  41  L.  ed.  369; 
Lambert  v.  Barrett  (1895)  157  U.  S.  697,  15  Sup.  Ct.  722,  39  L.  ed.  865; 
Fidelity  &  C.  Co.  v.  Southern  Ry.  N.  Co.  (1909)  214  U.  S.  498,  29  Sup.  Ct. 
699,  53  L.  ed.  1060;  Delmar  Jockey  Club  v.  Missouri  (1908)  210  U.  S. 
324,  335,  28  Sup.  Ct.  732,  735,  52  L.  ed.  1080;  Metropolis  T.  Co.  v.  Chicago 
(1913)  228  U.  S.  61,  70,  33  Sup.  Ct.  441,  443,  57  L.  ed.  730.  But  compare 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor  (1908)  210  U.  S.  281,  292,  28  Sup.  Ct. 


146  DUE  PROCESS  CLAUSES— POSITION  OF  COURT. 

cases  in  which  sentences  of  capital  punishment  have  been 
pronounced. 

We  shall  not,  however,  attempt  in  the  present  chapter 
to  reconcile  these  several  lines  of  decision.  A  discussion 
of  the  purpose  of  those  who  placed  the  due  process  clauses 
in  the  Federal  Constitution  will  require  a  separate  chap- 
ter.'^s 

616,  620,  52  L.  ed.  1080;  Green  B.  &  M.  C.  Co.  v.  Patten  P.  Co.  (1898)   172 
U.  S.  58,  82,  19  Sup.  Ct.  97,  106,  43  L.  ed.  364    (1899)    173  U.  S.  179,  19 
Sup.  Ct.  316,  43  L.  ed.  658;  American  Ex.  Co.  v.  Mullins   (1909)   212  U.  S. 
311,  29  Sup.  Ct.  381,  53  L.  ed.  525. 
78  Chapter  4,  infra. 


CHAPTER  IV. 

THE  DUE  PROCESS  CLAUSES— DISCUSSION. 

INTRODUCTORY. 

71.  Scope  of  chapter. 

IS  THE  PROVISION  NECESSARILY  A  SUBSTANTIVE   RESTRAINT? 

72.  Position  taken  in  Hurtado  v.  California. 

73.  Are  all  organs  of  government  necessarily  restrained? 

74.  The  significance  of  the  word  "state." 

75.  Is  the  restraint  necessarily  more  than  procedural  ? 

THE  LAW  OF  THE  LAND. 

76.  "Due  process"  and  "law  of  the  land"  provisions  are  akin. 

77.  The  "law  of  the  land"  in  England. 

78.  "Due  process  of  law"  in  England. 

79.  The  provisions  compared. 

80.  The  term  "law  of  the  land"  sometimes  used  in  broader  sense. 

81.  Term  has  same  general  scope  in  America  as  in  England. 

82.  How  may  the  "law  of  the  land"  be  changed? 

83.  The  Constitution  does  not  make  the  "law  of  the  land"  unchangeable. 

84.  The  "law  of  the  land"  may  be  different  in  the  several  states. 

85.  Judicial  alteration  of  the  "law  of  the  land." 

THE  ARGUMENT  CONCERNING  REDUNDANCY. 

86.  The  question  stated. 

87.  The  question  elaborated. 

88.  Discussion  of  question  of  redundancy. 

DISCRIMINATION. 

89.  Position  of  court  on  discriminatory  state  action. 

90.  Position  of  court  on  fraud  and  improper  motives. 

91.  Discussion. 

CONSTITUTIONAL  AND   EXTRA-CONSTITUTIONAL   RESTRAINTS. 

92.  Inconsistent  positions  taken. 

93.  Power  to  declare  governmental  action  unconstitutional. 

94.  General  duty  to  enforce  legislation. 

95.  Passing  upon  the  wisdom  or  justice  of  governmental  action. 

96.  The  Ninth  Amendment. 

97.  Rule  stated  in  Twining  v.  New  Jersey. 

147 


148  DUE  PROCESS  CLAUSES— DISCUSSION. 

98.  Extra-constitutional  restraints  and  rights. 

99.  Inalienable  rights. 

100.  Natural  justice. 

101.  Fundamental  rights. 

102.  "Essential  nature  of  all  free  governments." 

103.  Discussion  on  inalienable  rights,  etc. 

104.  Scope  of  governmental  authority. 

REASONABLENESS. 

105.  Unreasonable  or  arbitrary  governmental  action. 

106.  Unnecessary  governmental  action. 

107.  Nature  of  opinions  upon  these  subjects. 

108.  Relevancy  of  decisions  on  reasonableness  of  ordinances. 

109.  Reasonable  exercises  of  police  power. 

110.  Meaning  of  term  "police  power." 

111.  Relevancy  of  decisions  on  police  power. 
112  Is  a  change  of  law  a  "deprivation?" 

113.  Summary  as  to  police  power. 

114.  Reasonableness   and  natural  justice. 

115.  Massachusetts  decisions. 

116.  Position  of  court  as  to  arbitrary  governmental  action. 

117.  Discussion  of  position. 

118.  Reasonableness  of  rate  regulations. 

JUST  COMPENSATION. 

119.  The  position  of  the  court. 

120.  Dicta  in  earliest  cases. 

121.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota. 

122.  Kaukauna  and  Yesler  cases. 

123.  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago. 

124.  The  taking  of  property  for  private  use. 

125.  Later  cases. 

126.  General  comment  on  position  of  court. 

TEXT  AND  CONTEXT. 

127.  The  significance  of  tlie  context. 

128.  The  true  meaning  of  the  term  "liberty." 

129.  The  position  of  the  court  on  the  term  "liberty." 

130.  Allgeyer  v.  Louisiana. 

CONCLUSION. 

131.  Position  of  court  criticized. 

132.  Should  the  court  now  take  the  correct  position? 


INTRODUCTORY.  149 

INTRODUCTORY. 

Scope  of  chapter. 

71.  We  have  already  noted  that  the  United  States  Su- 
preme Court  has  not  stated  any  clear  general  test  of  the 
compliance  of  governmental  action  with  the  requirement 
of  the  due  process  provision.  We  must  now  add  that  the 
court  has  not  shown  sufficiently  the  grounds  for  the  de- 
cisions which  it  has  rendered  under  that  provision.  It  has 
given  a  number  of  reasons  for  its  decisions,  but  it  has  not, 
unless  in  exceptional  cases,  shown  how  those  reasons  were 
derived  from  the  provision  which  the  court  was  called 
upon  to  interpret.  In  many  cases  it  has  not  even  at- 
tempted to  show  by  what  process  of  reasoning  its  de- 
cisions were  derived  from  the  terms  of  the  due  process 
clauses.  In  other  cases  it  has  not  shown  sufficiently  the 
connection  between  its  conclusions  and  the  words  of  the 
Constitution  upon  which  any  conclusions  must  be  based. 
And  if  the  court  has  at  any  time  shown  clearly  that  the 
decisions  were  based  upon  a  careful  interpretation  of  the 
due  process  clauses,  it  certainly  has  not,  by  reference  or 
otherwise,  given  to  that  demonstration  the  prominence 
which  it  deserved. 

Indeed,  the  reasons  which  the  court  has  given  for  some 
of  its  decisions  under  the  due  process  clauses  are  not  con- 
sistent with  reasons  which  the  court  has  given  for  its  de- 
cisions in  other  cases.  We  must,  then,  examine  the  funda- 
mental reasons  for  its  decisions,  in  order  to  reconcile  the 
cases  if  that  can  be  done,  or,  if  it  cannot  be  done,  in  order 
to  determine  which  line  of  decisions  rests  upon  correct 
principles.^    For  even  if  we  do  not  go  so  far  as  the  court 

1  "We  must,  then,  either  reconcile  the  cases,  or,  if  this  cannot  be  done, 
determine  which  line  rests  upon  the  right  principle;  and  having  so  deter- 
mined, overrule  or  qualify  the  others,  and  apply  and  enforce  the  correct 
doctrine.     This  is  the  ease,  since  to  do  otherwise  would  serve  only  to  add 


150  DUE  PROCESS  CLAUSES— DISCUSSION. 

itself  has  gone  and  say  that  the  increasing  frequency  with 
which  the  clauses  are  invoked  furnishes  abundant  evi- 
dence that  there  exists  some  strange  misconception  of  the 
scope  of  the  provision,^  we  must  at  least  realize  that  in 
view  of  the  state  of  the  authorities  it  will  be  necessary 
for  us  to  do  more  than  simply  compile  the  results  of  the 
gradual  process  of  judicial  inclusion  and  exclusion. 

We  shall,  therefore,  consider  whatever  reasons  the 
court  has  given  for  declaring  that  the  clauses  established 
particular  principles;  we  shall  examine  other  lines  of 
thought  which,  though  not  expressed  so  definitely,  seem 
to  have  influenced  the  decisions;  and  we  shall  inquire 
whether  further  reasons  may  properly  be  urged  in  sup- 
port of  or  in  opposition  to  those  decisions.  By  so  doing 
we  shall  obtain  a  clearer,  more  correct  and  more  complete 
view  of  the  general  purpose  of  those  who  placed  the  due 
process  clauses  in  the  Federal  Constitution  than  we  could 
secure  in  any  other  manner.  Such  a  discussion  will  nec- 
essarily be  somewhat  long.  But  the  importance  of  the 
subject  and  the  state  of  the  authorities  furnish  an  ample 
warrant  for  an  extensive  examination  of  fundamental 
principles. 

IS    THE    PROVISION    NECESSARILY    A    SUBSTANTIVE    RE- 
STRAINT? 

Position  taken  in  Hurtado  v.  California. 

72.  The  clearest  reasoning  in  support  of  the  position  of 
the  court  that  the  due  process  clauses  concern  more  than 

to  the  seeming  confusion  and  increase  the  uncertainty  in  the  future  as  to 
a  question  which  it  is  our  plain  duty  to  make  free  from  uncertainty:"  Ex 
parte  Harding  (1911)  219  U.  S.  363,  378,  31  Sup.  Ct.  324,  329,  55  L.  ed. 
252.  While  this  case  does  not  turn  upon  the  due  process  provision,  the 
language  quoted  is  pertinent. 
2  See  p.  119,  supra. 


IS  PROVISION  A  SUBSTANTIVE  RESTRAINT?  151 

procedure  ^  seems  to  have  been  advanced  in  the  opinion 
in  Hurtado  v.  California,^  in  which  the  court  admitted 
that  in  England  the  legislative  department  of  government 
was  not  in  any  respect  whatever  restricted  by  the  consti- 
tutional provision,  which  the  court  has  declared  to  be 
closely  akin  to  the  due  process  requirement,^  that  no  one 
should  suffer  named  deprivations  except  in  accordance 
with  the  law  of  the  land.  The  court  said  that,  although 
the  provisions  of  Magna  Carta  were  directed  against  the 
king  and  acts  of  Parliament  were  always  regarded  as  con- 
sistent with  the  law  of  the  land,  yet  in  this  country  the 
provisions  in  our  Bills  of  Rights  are  limitations  upon  all 
departments  of  government,  and  for  that  reason  provi- 
sions taken  from  the  English  constitution  have  a  broader 
meaning  than  they  had  in  England  and  must  be  held  to 
guarantee  not  particular  forms  of  procedure  but  the  very 
substance  of  individual  rights  to  life,  liberty  and  prop- 
erty.^ 

3  See  sec.  66,  supra. 

4  (1884)   110  U.  S.  516,  4  Sup.  Ct.  Ill,  292,  28  L.  ed.  232. 

5  See  cases  in  note  18,  infra. 

6  "The  concessions  of  Magna  Carta  were  wrung  from  the  king  as  guaran- 
tees against  the  oppressions  and  usurpations  of  his  prerogative.  It  did  not 
enter  into  the  minds  of  the  barons  to  provide  security  against  their  own 
body  or  in  favor  of  the  Commons  by  limiting  the  power  of  Parliament;  so 
that  bills  of  attainder,  ex  post  facto  laws,  laws  declaring  forfeitures  of 
estates,  and  other  arbitrary  acts  of  legislation  which  occur  so  frequently 
in  English  history,  were  never  regarded  as  inconsistent  with  the  law  of  the 
land;  for  notwithstanding  what  was  attributed  to  Lord  Coke  in  Bonham's 
Case  (1609)  8  Coke,  114a,  118a,  the  omnipotence  of  Parliament  over  the 
common  law  was  absolute,  even  against  common  right  and  reason.  The 
actual  and  practical  security  for  English  liberty  against  legislative  tyranny 
was  the  power  of  a  free  public  opinion  represented  by  the  Commons.  In 
this  country  written  constitutions  were  deemed  essential  to  protect  the 
rights  and  liberties  of  the  people  against  the  encroachments  of  power 
delegated  to  their  governments,  and  the  provisions  of  Magna  Carta 
were  incorporated  into  Bills  of  Rights.  They  were  limitations  upon 
all  the  powers  of  government,  legislative  as  well  as  executive  and  judicial. 
It  necessarily  happened,  therefore,  that  as  these  broad  and  general  maxims 


152  DUE  PROCESS  CLAUSES— DISCUSSION. 

We  are  not  at  present  interested  in  the  actual  decision 
in  that  case,  for  the  statute  under  consideration,  which 
was  sustained,  dealt  only  with  a  question  of  procedure. 
But  the  opinion  is  important  because  it  contains  what  is 
apparently  the  clearest  reasoning  which  has  been  ad- 
vanced by  the  court  in  support  of  its  position.  The  court 
practically  assumed  that  all  of  the  provisions  in  our  Bills 
of  Rights  apply  to  all  organs  of  government  and  said  that 
for  that  reason  the  provision  must  relate  to  more  than 
procedure. 

Are  all  organs  of  government  necessarily  restrained? 

73.  In  saying  that  the  provisions  of  our  constitutions 
apply  to  all  organs  of  government  the  court  was  probably 
influenced  by  the  fact  that  our  Bills  of  Rights  do  contain 

of  liberty  and  justice  held  in  oui*  system  a  different  place  and  performed 
a  different  function  from  their  position  and  office  in  English  constitutional 
history  and  law,  they  would  receive  and  justify  a  corresponding  and  more 
comprehensive  interpretation.  Applied  in  England  only  as  guards  against 
executive  usurpation  and  tyranny,  here  they  have  become  bulwarks  also 
against  arbitrary  legislation;  but,  in  that  application,  as  it  would  be  in- 
congruous to  measure  and  restrict  them  by  the  ancient  customary  English 
law,  they  must  be  held  to  guarantee  not  particular  forms  of  procedure,  but 
the  very  substance  of  individual  rights  to  life,  liberty  and  property:" 
Hurtado  v.  California  (1884)  110  U.  S.  516,  531,  532,  4  Sup.  Ct.  Ill,  292, 
119,  28  L.  ed.  232.  See  also  110  U.  S.  at  535-537,  4  Sup.  Ct.  at  120,  121; 
Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  102,  24  L.  ed.  616;  and  con- 
curring opinion  in  the  latter  case.  Compare  96  U.  S.  at  103,  104,  24  L.  ed.  at 
619.  The  court  in  the  Hurtado  case  added,  "Restraints  that  could  be  fastened 
upon  executive  authority  with  precision  and  detail,  might  prove  obstruc- 
tive and  injurious  when  imposed  on  the  just  and  necessary  discretion  of 
legislative  power;  and  while  in  every  instance  laws  that  violated  express 
and  specific  injunctions  and  prohibitions  might,  without  embarrassment,  be 
judicially  declared  to  be  void,  yet  any  general  principle  or  maxim,  founded 
on  the  essential  nature  of  law,  as  a  just  and  reasonable  expression  of  the 
public  will  and  of  government,  as  instituted  by  popular  consent  and  for 
the  general  good,  can  only  be  applied  to  cases  coming  clearly  within  the 
scope  of  its  spirit  and  purpose,  and  not  to  legislative  provisions  merely 
establishing  forms  and  modes  of  attainment.  Such  regulations,  to  adopt  a 
sentence  of  Burke's,  'may  alter  the  mode  and  application  but  have  no  power 
over  the  substance  of  original  justice.'  " 


IS  PROVISION  A  SUBSTANTIVE  EESTEAINT?  153 

some  provisions  which  restrict  our  legislative  bodies.  Yet 
obviously  it  does  not  follow  therefrom  that  all  of  the  pro- 
visions restrain  our  legislatures.  The  fact  that  a  constitu- 
tion restrains  each  of  the  departments  of  government  no 
more  makes  every  restraint  which  that  constitution  places 
upon  one  department  binding  upon  the  rest  than  the  fact 
that  the  Federal  Constitution  restrains  the  federal  gov- 
ernment and  restrains  the  states  makes  every  restraint 
which  that  Constitution  places  upon  the  one  binding  upon 
the  other. 

And  certainly  it  is  not  self-evident  that  every  restraint 
set  forth  in  our  constitutions  is  necessarily  directed 
against  every  department  of  government,  especially  where 
the  provision  is  not  unlimited  in  its  terms.  The  require- 
ment that  no  taxes  shall  be  levied  except  in  accordance 
with  a  law  which  originated  in  the  House  of  Representa- 
tives does  not  constitute  any  restraint  upon  the  House  of 
Eepresentatives.  And  so  also  if  when  the  due  process 
provision  was  placed  in  the  Federal  Constitution  it  meant 
that  no  person  should  be  deprived  of  life,  liberty  or  prop- 
erty except  in  the  manner  prescribed  by  the  law  of  the 
jurisdiction,  the  court  cannot  properly  say  that  the  pro- 
vision restricts  a  department  of  government  which  was 
authorized  to  change  procedure  in  making  such  changes, 
and  that  if  the  original  meaning  of  the  tenn  "due  pro- 
cess of  law"  does  not  fit  in  with  the  assumption  that  all 
portions  of  the  Constitution  apply  to  all  departments  of 
government  the  meaning  of  the  term  must  be  changed 
rather  than  the  assumption  that  the  provision  restrains 
all  departments  of  government. 

We  shall  not  pause  here  to  consider  the  actual  meaning 
of  the  term  ' '  due  process  of  law. "  It  is  sufficient  for  our 
present  purpose  to  point  out  that  the  court  is  not  war- 
ranted in  slurring  over  the  particular  provisions  without 


154  DUE  PROCESS  CLAUSES— DISCUSSION. 

careful  examination  and  assuming  that  all  of  the  pro- 
visions in  our  Bills  of  Rights  necessarily  restrain  all  de- 
partments of  government  and  that  the  meanings  of  the 
provisions  must  be  such  as  will  correspond  with  this  as- 
sumption. 

It  will  be  obser\^ed  that  the  court  did  not  merely  say 
that  a  provision  of  the  Constitution  restricts  all  depart- 
ments of  government  to  which,  regardless  of  its  original 
application,  it  might  be  applied  without  changing  its  orig- 
inal meaning.  The  court  went  further  than  that :  it  went 
further  than  it  would  have  gone  if  it  had  said,  for  in- 
stance, that,  while  in  England  a  provision  in  the  constitu- 
tion for  trial  by  jury  would  not  have  been  a  restraint  upon 
legislative  regulation  of  judicial  procedure,  in  this  coun- 
try such  a  provision  would  limit  the  activity  of  the  legisla- 
ture in  that  respect;  for,  regardless  of  the  effect  of  such 
a  provision  in  the  mother  country,  there  is  nothing  in  the 
nature  or  terms  or  history  of  that  provision  which  would 
make  it  inapplicable  as  a  restraint  upon  legislation.  But 
the  court  has  gone  even  further  than  the  assumption  that 
our  legislatures  are  restrained  by  all  of  the  provisions  of 
the  constitutions  which,  regardless  of  their  original  appli- 
cations, might  be  treated  as  restraints  upon  legislation 
without  changing  their  original  meanings,  and  has  prac- 
tically assumed  that  all  of  the  provisions  in  our  Bills  of 
Rights  necessarily  restrain  all  of  the  departments  of  gov- 
ernment. And  such  an  assumption,  it  is  submitted,  is  not 
justifiable. 

The  significance  of  the  word  ''state." 

74.  In  interpreting  the  due  process  clause  of  the  Four- 
teenth Amendment,  the  court  in  some  cases  has  laid  stress 
upon  the  fact  that  the  requirement  is  that  no  "state" 


IS  PROVISION  A  SUBSTANTIVE  RESTRAINT?  155 

shall  deprive  without  due  process  of  law,  and  has  said  that 
the  word  ''state"  must  necessarily  cover  all  organs  of 
state  government/ 

Those  who  adopted  the  Fourteenth  Amendment,  by  the 
language  which  they  used,  showed  unquestionably  that 
they  intended  to  provide  that  organs  of  the  state  govern- 
ments should  be  bound  by  the  due  process  requirement 
which  had  theretofore  bound  only  organs  of  the  federal 
government,  and  that  if  an  organ  of  the  federal  govern- 
ment was  bound  by  the  due  process  clause  of  the  Fifth 
Amendment  the  similar  organ  of  state  government  should 
be  bound  by  the  provision  of  the  Fourteenth  Amendment. 
Yet  it  is  not  clear  that  they  intended  that  their  use  of  the 
word  "state"  should  have  any  greater  significance  than 
this.^ 

Of  course,  if  the  due  process  clause  had  been  the  only 
provision  which  was  placed  in  the  Constitution  in  Recon- 
struction times,  it  might  possibly  be  said  that  to  decide 
that  any  organ  of  state  government  was  not  restrained 
by  it  would  be  to  make  that  sole  protection  for  the  freed- 
men  so  inadequate  that  it  could  hardly  be  supposed  that 
those  who  amended  the  Constitution  in  those  stirring 
times  intended  that  the  provision  should  have  simply  that 
restraining  force.  But  that  is  not  the  situation.  The  due 
process  clause  is  only  one  out  of  a  number  of  provisions 
which  were  placed  in  the  Constitution  at  the  same  per- 

7  Ex  parte  Virginia  (1879)  100  U.  S.  339,  347,  25  L.  ed.  676;  Neal  v. 
Delaware  (1880)  103  U.  S.  370,  397,  26  L.  ed.  567;  Chicago  B.  &  Q.  R.  Co.  v. 
Chicago  (1897)  166  U.  S.  226,  233,  234,  17  Sup.  Ct.  581,  583,  41  L.  ed. 
979;  and  see  Lochner  v.  New  York  (1905)  198  U.  S.  45,  56,  25  Sup.  Ct. 
539,  542,  49  L.  ed.  937;  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  102, 
24  L.  ed.  616;  dissenting  opinion  in  Taylor  and  Marshall  v.  Beckham 
(1900)  178  U.  S.  548,  599,  600,  20  Sup.  Ct.  904,  1014,  44  L.  ed.  1187;  sec. 
58,  supra. 

8  See  note  8  in  Chapter  3,  supra. 


156  DUE  PROCESS  CLAUSES— DISCUSSION. 

iod.^^  For  example,  slavery  was  forbidden  and  legislation 
against  the  freedmen  was  prevented  in  large  measure  by 
provisions  concerning  the  suffrage  and  representation. 
And  so  there  is  no  such  reason  as  that  which  has  just  been 
suggested  for  saying  that  the  due  process  clause  must  be 
regarded  as  a  restraint  upon  all  organs  of  government. 

Still  less  can  any  one  go  on  to  claim  that  any  particular 
clause  of  the  Amendments  must,  of  necessity,  have  been 
so  framed  as  to  meet  every  emergency;  for  that  claim 
could  not  be  made  even  for  the  Reconstruction  Amend- 
ments as  a  whole.  Nor  is  there  anything  in  the  conten- 
tion that  unless  all  organs  of  government  are  restrained 
the  provision  is  useless.^  By  the  Federal  Constitution  the 
federal  government  is  prevented  from  doing  some  things 
which  a  state  government  may  do,  and  vice  versa.  It  is 
not  said  that  because  a  provision  applies  to  only  one  gov- 
ernment it  does  not  amount  to  any  restraint  whatever; 
and  so  also  it  cannot  be  said  that  if  a  provision  applies  to 
only  one  department  of  government  it  has  no  re- 
straining force. ^*^  And  it  certainly  cannot  be  contended 
that  a  provision  must  have  as  extensive  an  effect  as 
those  who  interpret  it  may  consider  desirable. 

Is  the  restraint  necessarily  more  than  procedural? 

75.  Yet  even  if  it  were  clearly  shown  that  the  due  pro- 
cess provision  constituted  an  independent  restriction  upon 
legislative  regulation  of  procedure,  it  certainly  would  not 
follow  that  the  provision  related  also  to  substantive  law. 
The  Amendments  concerning  jury  trials  limit  the  power 

8a  See  7  Mich.  L.  Eev.  at  644  and  note. 

9  See  cases  in  note  7,  supra. 

10  The  weakness  of  the  contention  is  also  shown  by  a  consideration  of  the 
language  of  the  Constitution  of  Massachusetts,  Part  I,  Articles  10  and  30. 
And  see  24  Harv.  L.  Rev.  at  369,  372. 


IS  PROVISION  A  SUBSTANTIVE  RESTRAINT?  157 

of  Congress  over  judicial  procedure;  but  no  one  would 
think  of  contending  that  those  provisions  deal  with  any- 
thing except  jury  trials ;  and  in  the  argument  in  the  opin- 
ion in  the  Hurtado  case  ^^  the  court  does  not  show  any 
stronger  reason  for  saying  that  the  due  process  clauses 
must  relate  to  more  than  procedure. 

Of  course,  our  constitutions  do  in  places  deal  with  sub- 
stantive law.  The  provisions  relating  to  religious  free- 
dom and  the  provisions  relating  to  slavery  are  instances 
of  such  provisions.  But  it  is  also  clear  beyond  dispute 
that  those  who  adopted  our  constitutions  at  other  times 
sought  to  secure  good  government  indirectly,  and  only  in- 
directly, by  provisions  concerning  governmental  methods. 
The  men  who  adopted  the  Fifth  Amendment  were  men 
who  placed  a  large  amount  of  dependence  upon  forms  and 
institutions.^^     They  relied  largely  upon  what  they  con- 

11  See  sec.  72,  supra. 

12  Sir  Frederick  Pollock  speaks  of  "the  very  common  error,  especially- 
prevalent  in  the  eighteenth  century,  of  attributing  a  constant  and  in- 
fallible efficacy  to  the  forms  of  government:"  Pollock's  Maine's  Ancient 
Law,  175.  Professor  Thayer  says,  "The  chief  protections  were  a  wide  suf- 
frage, short  terms  of  office,  a  double  legislative  chamber,  and  the  so-called 
executive  veto.  There  was,  in  general,  the  greatest  unwillingness  to  give 
the  judiciary  any  share  in  the  law-making  power."  "The  judiciary  may 
well  reflect  that  if  they  had  been  regarded  by  the  people  as  the  chief  pro- 
tection  against   legislative   violation   of  the   constitution,   they  would   not 

have  been  allowed  merely  this  incidental  and  postponed  control 

It  was,  then,  all  along  true,  and  it  was  foreseen,  that  much  which  is  harm- 
ful and  unconstitutional  may  take  effect  without  any  capacity  in  the 
courts  to  prevent  it,  since  their  whole  power  is  a  judicial  one.  Their  in- 
terference was  but  one  of  many  safeguards,  and  its  scope  was  narrow:" 
The  Origin  and  Scope  of  the  American  Doctrine  of  Constitutional  Law,  7 
Harv.  L.  Rev.  137,  note,  136,  137;  Thayer,  Legal  Essays,  11,  note,  11,  12. 
Chief  Justice  Marshall  says,  "The  wisdom  and  the  discretion  of  Congress, 
their  identity  with  the  people,  and  the  influence  which  their  constituents 
possess  at  elections,  are,  in  this,  as  in  many  other  instances,  as  that,  for  ex- 
ample, of  declaring  war,  the  sole  restraints  on  which  they  have  relied,  to  se- 
cure them  from  its  abuse.  They  are  the  restraints  on  which  the  people  must 
often  rely  solely,  in  all  representative  governments:"  Gibbons  v.  Ogden 
(1824)   9  Wheat.  1,  197,  6  L.  ed.  23.     See  also  Oceanic  N.  Co.  v.  Stranahan 


158  DUE  PROCESS  CLAUSES— DISCUSSION. 

sidered  an  appropriate  distribution  and  separation  of  the 
powers  of  government,  npon  popular  representation  in  the 
legislature,  and  upon  trial  by  jury.  In  conformity  with 
these  views  they  were  unwilling  that  the  judiciary  should 
pass  upon  the  desirability  of  legislation;  ^^  and  they  were 
so  well  satisfied  with  trial  by  jury  that  by  the  Seventh 
Amendment,  which  was  adopted  at  the  same  time  as  the 
Fifth  Amendment,  they  were  careful  to  provide  that  no 
appellate  federal  tribunal  should  consider  whether  the 
verdict  of  a  jurj^  in  a  trial  at  common  law  were  against 
the  weight  of  the  evidence. ^^  Moreover,  in  the  Eecon- 
struction  Amendments  provisions  concerning  elections 
and  office-holding  take  up  fully  one-half  of  the  space  and 
show  that  when  that  portion  of  the  Constitution  was 
adopted  a  large  amount  of  reliance  was  placed  upon  the 
organization  of  the  state  governments  for  the  securing  of 
fair  treatment  to  the  freedmen. 

In  short,  it  is  clear  that  those  who  adopted  the  first 
ten  Amendments  and  those  who  adopted  the  Recon- 
struction Amendments  believed  that  by  providing  care- 
fully as  to  the  agencies  of  government  they  were  doing 
much  towards  securing  good  government.  Such  provi- 
sions cannot  by  any  flight  of  the  imagination  be  con- 

(1909)  214  U.  S.  320,  340,  29  Sup.  Ct.  671,  676,  53  L.  ed.  1013;  Twining 
V.  New  Jersey  (1908)  211  U.  S.  78,  106,  114,  29  Sup.  Ct.  14,  22,  26,  53  L. 
ed.  97;  McCray  v.  United  States  (1904)  195  U.  S.  27,  55,  24  Sup.  Ct.  769, 
776,  49  L.  ed.  78;  Lottery  Case— Champion  v.  Ames  (1903)  188  U.  S.  321, 
363,  23  Sup.  Ct.  321,  329,  330,  47  L.  ed.  492;  Missouri,  K.  &  T.  Ry.  Co.  v. 
May  (1904)  194  U.  S.  267,  270,  24  Sup.  Ct.  638,  639,  48  L.  ed.  971;  County 
of  Mobile  v.  Kimball  (1880)  102  U.  S.  691,  704,  26  L.  ed.  238;  Martin  v. 
Mott  (1827)  12  Wheat.  19,  32,  6  L.  ed.  537;  Dorman  v.  State  (1859)  34 
Ala.  216,  235;  Kent,  Commentaries,  IT,  *11;  9  Mich.  L.  Rev.  108,  109; 
Pollock's  Maine's  Ancient  Law,  xvii. 

13  Elliot's  Debates,  V,  151,  155,  164,  166,  344,  428;  notes  12,  supra,  and 
81,  infra;  and  see  McMurtrie,  The  Jurisdiction  to  Declare  Void  Acts  of 
Legislation,  32  Am.  L.  Reg.  N.  S.  1094,  1100,  1103. 

14  See  authorities  cited  in  notes  45,  46  in  Chap.  9,  infra. 


THE  LAW  OF  THE  LAND.  159 

stmed  as  relating  directly  to  substantive  law;  and  there 
are  other  provisions  of  the  United  States  Constitution 
which  are  unquestionably  strictly  procedural.  Therefore, 
we  cannot  say  that  a  clause  of  the  Constitution  necessar- 
ily "must  be  held  to  guarantee  not  particular  forms  of 
procedure,  but  the  very  substance  of  individual  rights  to 
life,  liberty  and  property,"  ^^  but  we  must,  instead,  in- 
quire as  to  the  particular  clause  whether  it  has  in  fact  that 
effect. 

THE  LAW  OF  THE  LAND. 

"Due  process"  and  "law  of  the  land"  provisions  are 
akin. 

76.  As  already  pointed  out,^^  the  court  has  said  that 
the  due  process  provision  is  akin  to  the  provision 
in  chapter  39  of  Magna  Carta  ^'^  that  "no  free- 
man shall  be  arrested,  or  detained  in  prison,  or  de- 
prived of  his  freehold,  or  outlawed,  or  banished,  or  in 
any  way  molested ;  and  we  will  not  set  forth  against  him, 
nor  send  against  him,  unless  by  the  lawful  judgment  of  his 
peers  and  by  the  law  of  the  land."  In  some  cases  it  has 
said  that  the  provision  in  the  American  Constitution  is 
equivalent  to  the  one  in  Magna  Carta,^^  and  in  other  cases 

15  See  Hurtado  v.  California,  quoted  in  note  6,  supra. 

16  Sec.  72,  supra. 

17  The  language  quoted  in  the  text  is  from  the  Magna  Carta  of  1215.  On 
the  translation  see  McKechnie,  Magna  Carta,  436,  442.  Coke  and  others 
have  followed  the  phraseology  of  the  reissue  of  the  Charter  by  Henry  III 
in  1225,  where  the  wording  is  somewhat  different  and  where  diflferent  chap- 
ter-numbers prevail.  See  McKechnie,  op.  cit.,  183.  While  the  printed  texts 
of  Magna  Carta  are  divided  into  numbered  chapters,  such  an  arrangement 
is  simply  a  modern  invention  made  for  convenience  of  reference.  The 
original  is  not  divided  into  chapters:     McKechnie,  op.  cit.,  200. 

18  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  100,  105,  108,  29  Sup.  Ct. 
14,  20,  22,  23,  53  L.  ed.  97;  Missouri  P.  Ry.  Co.  v.  Humes  (1885)  115  U.  S. 
512,  519,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463;  Murray's  Lessee  v.  Hoboken 


160  DUE  PROCESS  CLAUSES— DISCUSSION. 

it  lias  said  that  while  the  clauses  are  akin  the  due  process 
requirement  must  be  given  a  more  comprehensive  inter- 
pretation in  this  country  than  that  to  which  the  require- 
ment of  Magna  Carta  would  have  been  entitled  in  Eng- 
land.^^    Both  of  these  positions  will  be  considered. 

The  "law  of  the  land"  in  England. 

77.  When  the  provision  for  the  law  of  the  land  was  used 
in  Magna  Carta  it  referred  largely  if  not  exclusively  to 
procedure;-*^  indeed,  it  seems  that  in  the  chapter  under 
consideration  it  must  have  referred  to  procedure  exclu- 
sively.   As  Dr.  Bigelow  says, ' '  The  expression  '  per  legem 

L.  &  I.  Co.  (1855)  18  How.  272,  276,  15  L.  ed.  372;  and  see  Walker  v. 
Sauvinet  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678;  Davidson  v.  New  Orleans 
(1877)  96  U.  S.  97,  101,  102,  24  L.  ed.  616;  Hurtado  v.  California  (1884) 
110  U.  S.  516,  535,  4  Sup.  Ct.  Ill,  292,  120,  28  L.  ed.  232;  In  re  Keramler 
(1890)  136  U.  S.  436,  448,  10  Sup.  Ct.  930,  934,  34  L.  ed.  519;  French  v. 
Barber  A.  P.  Co.  (1901)  181  U.  S.  324,  333,  21  Sup.  Ct.  625,  628,  45  L.  ed. 
879;  Dent  v.  West  Virginia  (1889)  129  U.  S.  114,  123,  124,  9  Sup.  Ct. 
231,  234,  32  L.  ed.  623;  7  Harv.  L.  Eev.  at  474. 

19  See  note  6,  supra. 

20  This  procedure  is  dealt  with  by  Thayer,  Preliminary  Treatise  on  Evi- 
dence, 198,  and  McKechnie,  Magna  Carta,  circ.  102.  The  latter  says  that 
in  those  days  the  chief  or  medial  judgment  "came  before  the  proof  or 
trial,  not  after  it.  It  consisted  indeed  in  decreeing  whether  or  not,  on  the 
strength  of  the  previous  procedure,  the  defendant  should  be  put  to  his  proof 
at  all;  and  if  so,  what  'proof  should  be  demanded.  Now,  the  exact  test 
to  be  appointed  by  the  court  varied  somewhat,  according  to  circumstances, 
but  long-established  custom  had  laid  down  with  some  exactitude  a  rule 
applicable  to  every  case  likely  to  occur;  and,  further,  the  possible  modes 
of  proof  were  limited  to  four  or  five  at  the  outside.  .  .  .  The  'proof,' 
of  whatever  kind  it  might  be,  thus  appointed  by  the  'judges'  for  the  de- 
fendant's performance  was  technically  known  as  a  'law'  (Latin  lex)  in 
the  sense  of  a  'test'  or  'trial'  or  'task',  according  to  his  success  or  failure 
in  which  his  case  should  stand  or  fall.  .  .  .  The  ancient  'trial'  was 
merely  a  formal  test,  wliich  was,  except  in  the  case  of  battle,  entirely  one- 
sided." It  consisted  simplj'  in  the  performance  by  the  party  of  the  test 
which  had  been  set  for  him.  Those  who  gave  final  sentence  were  mere 
umpires.  They  "could  scarcely  be  said  to  decide  the  case,  since  this  had 
already  been  practically  decided  by  the  success  or  failure  of  the  party  on 
whom  the  proof  had  been  laid." 


THE  LAW  OF  THE  LAND.  161 

terrae'  simply  required  judicial  proceedings  according  to 
the  nature  of  the  case;  the  duel,  ordeal  or  compurgation 
in  criminal  cases,  the  duel,  witnesses,  charters  or  recogni- 
tion in  property  cases."  ^^  And  there  are  other  authori- 
ties to  the  same  effect.^"  It  is  possible  that  the  provision 
for  the  law  of  the  land  referred  merely  to  the  particular 
forms  of  procedure  which  were  lawful  in  the  year  1215, 
but  there  is  room  for  doubt  whether  it  sought  to  make  it 
impossible  to  change  those  forms  of  procedure.^^ 

21  Bigelow,  History  of  Procedure  in  England,  155,  note. 

22  See  Thayer,  Preliminary  Treatise  on  Evidence,  199-201 ;  Baldwin,  The 
Courts  as  Conservators  of  Social  Justice,  9  Col.  L.  Rev.  567,  571.  In  Mc- 
Kechnie,  Magna  Carta,  437,  441,  442,  it  is  said  that  Magna  Carta  "sought 
the  reform  of  a  specific  and  clearly  defined  group  of  abuses.  Its  main 
object  was  to  prohibit  John  from  resorting  to  what  is  sometimes  whimsi- 
cally known  in  Scotland  as  'Jeddart  justice.'  It  forbade  him  for  the  future 
to  place  execution  before  judgment.  .  .  .  The  Great  Charter  promised 
that  no  plea,  civil  or  criminal,  should  henceforth  be  decided  against  any 
freeman  until  he  had  failed  in  the  customary  'proof — whether  battle,  or 
ordeal,  or  otherwise.  .  .  .  The  words  of  John's  charter  promised  a 
threefold  security  to  all  the  freemen  of  England.  Their  persons  and  prop- 
erty were  protected  from  the  king's  arbitrary  will  by  the  rule  that  execu- 
tion should  be  preceded  by  a  judgment— by  a  judgment  of  peers — by  a  judg- 
ment according  to  the  appropriate  time-honored  'test,'  battle,  compurga- 
tion, or  ordeal."  In  Eeeves,  History  of  the  English  Law  (in  Finlason's 
ed.,  II,  43)  "per  legem  terrae"  is  rendered  ''by  some  other  legal  process  or 
proceeding  adapted  by  law  to  the  nature  of  the  case." 

23  McKeclinie  says,  "The  stress  placed  on  the  accused's  right  to  the  time- 
honored  forms  of  lex  is  well  illustrated  by  the  difficulty  of  substituting 
jury  trial  for  ordeal.  .  .  .  The  right  of  'standing  mute,'  that  is,  vir- 
tually, of  demanding  ordeal,  was  only  abolished  in  1772.  .  .  .  Five 
and  a  half  centuries  were  thus  allowed  to  pass  before  the  criminal  law  wa? 
bold  enough,  in  defiance  of  a  fundamental  principle  of  Magna  Carta,  to 
deprive  accused  men  of  their  'law:'"  Magna  Carta,  p.  441,  note.  But  any 
one  who  considers  how  ancient  customs  are  retained  long  after  the  reasons 
for  those  customs  have  disappeared,  and  on  this  point  see  Lucy,  Diary  of 
the  Salisbury  Parliament,  196  et  seq. ;  may  well  doubt  whether  there  is  any 
force  in  the  contention  that  the  right  of  standing  mute  was  retained  because 
it  was  thought  that  a  change  would  be  in  violation  of  Magna  Carta.  Mc- 
Kechnie,  however,  also  says  that  "lex  terrae"  gradually  changed  its  mean- 
ing and  that  this  change  was  reflected  in  subsequent  statutes  reaffirming, 
expanding  or  explaining  Magna  Carta:   p.  441;   see  also  p.  442.     He  calls 


162  DUE  PROCESS  CLAUSES— DISCUSSION. 

"Due  process  of  law"  in  England. 

78.  By  later  statutes  a  provision  for  due  process  of  law 
was  gradually  substituted  for  tlie  law  of  the  land  provi- 
sion,-^ and  in  view  of  the  wording  of  those  statutes  it 

attention  (p.  208)  to  the  fact  that  Coke  "reads  into  Magna  Carta  the 
entire  body  of  the  common  law  of  the  seventeenth  century,"  that  "the 
various  clauses  of  Magna  Carta  are  thus  merely  occasions  for  expounding 
the  law  as  it  stood,  not  at  the  beginning  of  the  thirteenth  century,  but  in 
his  own  day."  Has  the  learned  author  also  erred  in  reading  into  the  Great 
Charter  the  law  of  the  thirteenth  century?  Or  can  he  say  that  as  for  that 
period  it  is  not  possible  to  distinguish  between  the  meaning  of  the  term 
"the  law  of  the  land"  and  the  contents  of  the  law  of  the  land?  On  the 
distinction  see  p.  168,  infra. 

24  By  9  Hen.  Ill,  cap.  29,  confirmed  25  Edw.  I,  it  was  provided  that  "no 
freeman  shall  be  arrested  or  imprisoned  or  deprived  of  his  freehold  or 
liberties  or  free  customs  or  be  outlawed  or  banished  or  in  any  way  molested, 
and  we  will  not  set  forth  against  him  nor  send  against  him  unless  bj'  the 
lawful  judgment  of  his  peers  and  by  the  law  of  the  land.  To  no  man  will 
we  sell  or  deny  or  defer  right  and  justice."  By  5  Edw.  Ill  cap.  9,  it  was 
"accorded  and  established,  that  no  man  henceforth  may  be  attached  by  any 
accusation  nor  forejudged  of  life  or  limb,  nor  his  lands,  tenements,  goods 
nor  chattels  seized  into  the  hands  of  the  king  against  the  form  of  the  Great 
Charter  and  the  law  of  the  land."  By  25  Edw.  Ill,  stat.  5,  cap.  4,  it  was 
provided  that  "whereas  it  is  contained  in  the  Great  Charter  of  the  Fran- 
chises of  England  that  no  one  may  be  taken  nor  imprisoned  nor  deprived 
of  his  freehold  nor  of  his  franchises  nor  his  free  customs  unless  it  be  by 
the  law  of  the  land,  it  is  accorded,  assented  and  established  that  from 
henceforth  none  may  be  taken  by  petition  or  suggestion  made  to  our  lord 
the  king  or  to  his  council  unless  it  be  by  indictment  or  presentment  of  good 
and  lawful  men  of  the  neighborhood  where  such  deeds  be  done,  in  due  man- 
ner or  by  process  made  upon  original  writ  at  the  common  law;  nor  shall 
any  one  be  deprived  of  his  franchises  or  his  freehold  unless  he  be  himself 
placed  duly  in  response  and  judged  of  those  things  by  the  course  of  the 
law;  and  if  anything  shall  be  done  to  the  contrary  let  it  be  redressed  and 
held  for  naught."  See  also  Rot.  Pari.,  II,  239.  By  28  Edw.  Ill,  cap.  3,  it 
was  provided  that  "no  man,  of  whatever  estate  or  condition  he  may  be, 
may  be  put  out  of  his  land  or  tenement,  nor  taken,  nor  imprisoned,  nor  dis- 
inherited nor  put  to  death  without  being  brought  in  answer  by  due  process 
of  law."  By  37  Edw.  Ill,  cap.  18,  it  was  declared  that  "though  it  be  con- 
tained in  the  Great  Charter  that  no  man  be  taken,  nor  imprisoned,  nor 
put  out  of  his  freehold,  without  process  of  the  law,  nevertheless  divers 
people  make  false  suggestion  to  the  king  himself,  as  well  for  malice  as 
otherwise,  whereof  the  king  is  often  grieved,  and  divers  of  the  realm  put 
in  damage,  against  the  form  of  the  same  charter;  wherefore  it  is  ordained 


THE  LAW  OF  THE  LAND.  163 

seems  clear  that  the  desire  related  simply  to  procedure, 
and  it  seems  that  the  desire  was  for  the  procedure  which 
was  lawful  at  the  time  of  the  proceeding.  Of  course,  if 
there  was  any  difference  in  meaning  between  the  two  pro- 
visions the  provision  for  due  process  of  law  supplanted  the 
provision  for  the  law  of  the  land. 

The  provisions  compared. 

79.  But  the  two  provisions  apparently  had  the  same 
meaning,  or,  rather,  whatever  may  have  been  the  mean- 
ing of  the  law  of  the  land  provision  when  it  was  placed  in 
Magna  Carta,  when  that  provision  was  supplanted  by  the 
due  process  provision  the  two  clauses  were  apparently  re- 
garded as  synonymous.  It  is  probable  that  the  law  of  the 
land  provision  was  understood  to  be  merely  a  requirement 
that  there  should  be  a  procedure  which  was  in  accordance 
with  the  law  of  the  land  and  that  the  due  process  provision 
in  the  later  statutes  was  intended  merely  as  a  requirement 
of  a  procedure  which  was  made  due  by  the  law  of  the 
land.    Such  interpretations  are  decidedly  plausible.  And 

that  all  they  that  make  suggestions  be  sent  with  the  suggestions  before  the 
chancellor,  treasurer  and  his  council,  and  that  they  there  find  surety  to 
pursue  their  suggestions,  and  incur  the  same  pain  that  the  other  would 
have  had  if  he  were  attainted,  in  case  his  suggestion  be  found  evil;  and  that 
then  process  of  the  law  be  made  against  them,  without  being  taken  or  im- 
prisoned against  the  form  of  the  said  charter  and  other  statutes."  And  by 
42  Edw.  Ill,  cap.  3,  it  was  declared  that  "at  the  request  of  the  commons 
by  their  petition  set  forth  in  that  parliament  to  do  away  with  the  mis- 
chiefs and  damages  done  to  many  of  the  said  commons  by  false  accusers 
who  often  have  made  their  accusations  more  for  revenge  and  private  gain 
than  for  the  benefit  of  the  king  or  of  his  people,  which  accused  persons  have 
been  sometimes  taken  and  at  other  times  made  to  come  before  the  council 
of  the  king  by  writ  or  otherwise  under  grievous  pain  and  against  the  law, 
it  is  assented  and  accorded  for  the  good  government  of  the  commons  that 
no  man  may  be  put  to  answer  without  presentment  before  justices  or  mat- 
ter of  record  or  by  due  process  and  writ  original  according  to  the  old  law 
of  the  land,  and  if  anything  henceforth  be  done  to  the  contrary  it  shall  be 
void  in  law  and  held  for  error." 


164  DUE  PROCESS  CLAUSES— DISCUSSION. 

the  two  provisions  must  be  so  understood  if  Coke  was  jus- 
tified in  declaring  that  the  law  of  the  land  provision  was 
to  be  interpreted  (as  intervening  generations  had  appar- 
ently interiDreted  it)  by  the  due  process  provision,^^  and 
if  the  Supreme  Court  is  correct  in  saying  that,  conversely, 
the  requirement  of  due  process  of  law  is  equivalent  to  the 
earlier  requirement  of  the  law  of  the  land.  Those  state- 
ments are  correct  only  if  we  may  say,  as  the  court  said  in 
Walker  v.  Sauvinet,-®  that  due  process  of  law  means  the 
process  which  is  due  according  to  the  law  of  the  land.  If 
the  meaning  of  one  provision  was  different  from  that  of 
the  other,  if  its  scope  was  either  broader  or  narrower, 
then,  of  course,  one  provision  may  not  be  interpreted  by 
the  other,  and,  as  already  pointed  out,  we  must  remember 
that  the  due  process  provision  supplanted  the  provision 
for  the  law  of  the  land. 

The  term  "law  of  the  land"  sometimes  used  in  broader 
sense. 

80.  Before  we  consider  the  position  of  the  court  that  the 
due  process  provision  has  a  more  extensive  meaning  in 
this  country  than  the  provision  for  the  law  of  the  land  had 
in  England,  we  must  observe  that  the  term  "the  law  of 
the  land"  is  sometimes  used  in  the  present  day  in  a  sense 
which  is  broader  than  that  which  has  just  been  consid- 
ered. It  is  sometimes  used  as  meaning  the  law  of  the 
state  or  the  law  of  the  country  and  as  relating  to  more 
than  procedure.^'^ 

25  Coke,  Institutes,  II,  50.  See  also  Baldwin,  The  Courts  as  Conservators 
of  Social  Justice,  9  Col.  L.  Rev.  567,  571;  Corwin,  Due  Process  of  Law  Be- 
fore the  Civil  War,  24  Harv.  L.  Rev.  369,  371,  372;  Reeves,  History  of  the 
English  Law,  quoted  at  end  of  note  22,  supra.  Reeves's  book  was  pub- 
lished before  the  adoption  of  the  Fifth  Amendment. 

26  (1875)  92  U.  S.  90,  93. 

27  For  example,  in  Article  VI  of  the  Federal  Constitution,  where,  how- 


THE  LAW  OF  THE  LAND.  165 

But  while  the  provision  for  the  law  of  the  land,  as  that 
term  was  used  in  early  times,  was  quite  possibly  intended 
simply  as  a  requirement  of  what  was  later  called  due  pro- 
cess of  law,  it  certainly  does  not  follow  that,  on  the  other 
hand,  the  provision  for  due  process  of  law  is  equivalent  to 
a  provision  for  the  law  of  the  land  when  the  latter  term  is 
used  in  its  broadest  sense— as  relating  to  more  than  pro- 
cedure.   This  point  must  be  carefully  borne  in  mind. 

Term  has  same  general  scope  in  America  as  in  England. 

81.  And  yet,  even  if  we  assume  that  ''due  process  of 
law"  means  ''the  law  of  the  land"  in  the  broadest  sen&e 
of  the  latter  term,  we  must  note  that  such  a  requirement 
would  have  in  general  the  same  effect  in  this  country  as  it 
would  have  in  England. 

Of  course,  we  have  in  this  country  a  supreme  law  of  the 
land  and  when  it  speaks  it  must  be  obeyed  by  the  organ 
or  organs  of  government  to  which  it  speaks.  But  not  all 
of  the  law  of  the  jurisdiction  is  contained  in  the  constitu- 
tions. This  truth  is  elementary.  And  that  portion  of  the 
law  of  the  jurisdiction  which  is  not  contained  in  the  con- 
stitutions is,  in  this  country  as  in  England,  changeable  by 
the  appropriate  authorities,  although  only  the  appropri- 
ate authorities  may  change  or  disregard  it. 

How  may  the  "law  of  the  land"  be  changed? 

82.  In  England  the  Parliament,  subject  to  a  veto  power 
which  has  not  been  exercised  since  1707,"^  may  change 
the  law  in  any  respect,^*^  while  the  king  has  not  for  cen- 
turies had  the  power  to  disregard  the  law  or  to  change  the 

ever,  there   is   a   qualifying  adjective  which   limits   its   meaning.     On   the 
phraseology  of  this  article  see  Thayer,  John  Marshall,  64. 

28  Anson,  The  Law  and  Custom  of  the  Constitution,  3d  ed.,  I,  301. 

29  See  note  9  in  Chapter  2,  supra. 


166  DUE  PROCESS  CLAUSES— DISCUSSION. 

law  without  the  consent  of  Parliament. ^'^  And  in  this 
country  the  legislative  department  of  government  has  a 
power  to  change  the  law  which  is  different  from  the 
power  of  a  president  or  governor.  The  state  legislatures, 
over  subject-matters  not  withdrawn  from  their  control, 
and  Congress  over  subject-matters  entrusted  to  it,  have  all 
governmental  powers  which  are  not  entrusted  by  the  con- 
stitutions to  other  organs  of  government  and  which  are 
not  withdrawn  from  the  control  of  those  legislative  bodies 
by  other  provisions  of  the  constitutions,  while  the  execu- 
tive department  of  government,  on  the  other  hand,  pos- 
sesses only  powers  which  are  granted  to  it  by  law,  and 
those  powers  must  be  exercised  in  a  manner  recognized  by 
law.^^ 

In  other  words,  we  have  profited  by  the  struggles  which 
our  ancestors  had  with  their  kings  and,  by  the  distribu- 
tion of  governmental  powers  in  our  constitutions,  we  have 
made  it  clear  that  our  executives  are  without  power  to 
act  contrary  to  the  law  and  have  not  that  power  to  change 
the  law  which  our  legislatures  do  possess.  The  various 
departments  of  government  stand  in  the  same  relation  to 
each  other  as  regards  the  law  of  the  state  or  the  law  of 
the  country  in  the  United  States  as  they  did  in  England. 
To  say,  then,  that  all  parts  of  the  law  of  the  land  are 
equally  unchangeable,  or  to  say  that  that  part  of  the  law 
of  the  land  which  is  not  the  supreme  law  of  the  land  is 
unchangeable  by  the  legislature  because  unchangeable  by 
the  executive,  would  be  to  disregard  thoroughly  estab- 
lished distinctions.  While  other  departments  of  govern- 
so  bhi  of  Rights  (1689);  The  Case  of  Captain  Streater  (1653)  5  How. 
State  Trials,  365,  368.  And  see  Pollock  and  Maitland,  History  of  English 
Law,  I,  1st  ed.,  152,  2d  ed.,  173;  Anson,  The  Law  and  Custom  of  the  Consti- 
tution, 3d  ed.,  I,  chap.  9,  II,  pp.  33,  34 ;  Lowell,  The  Government  of  England, 
I,  22;  12  Coke,  76  (1611).  Compare  Lowell,  op.  cit.,  I,  23,  24. 
31  See  authorities  cited  in  sees.  31,  33,  37,  supra. 


THE  LAW  OF  THE  LAND.  167 

ment  are  restrained  by  the  law  of  the  land,  only  that  part 
of  the  law  of  the  land  which  the  constitution  makes  the 
supreme  law  of  the  land  is  unchangeable  by  legislation."^- 

The  Constitution  does  not  make  the  *  'law  of  the  land' '  un- 
changeable. 

83.  One  point  more  remains  to  be  noticed.  It  might  be 
claimed  that  a  requirement  in  a  constitution  that  the  law 
of  the  land  should  be  observed  would  require  the  observ- 
ance of  the  law  of  the  jurisdiction  as  it  stood  at  the  time 
when  the  provision  was  placed  in  the  constitution.^^  And 
in  support  of  that  contention  it  might  be  said  with  truth 
that  in  interpreting  a  provision  of  a  constitution  it  must 
be  given  the  meaning  which  it  had  at  the  time  of  its  adop- 

32  See  also  Sumpter  v.  State   (1906)   81  Ark.  60,  62,  98  S.  W.  719,  720; 

Mayo  V.  Wilson    (1817)    1   N.  H.  53,  57;   State  v.  (1794)    1   Hayw. 

(N.  C.)  28.  "Did,  then,  the  phrase,  'law  of  the  land,'  which  is  the  xiniversal 
form  in  these  [early  state]  constitutions,  import  any  limitation  upon  leg- 
islative power?  There  are  three  good  reasons  for  thinking  not.  In  the 
first  place,  'the  judgment  of  peers,'  signifying  in  our  constitutional  usage 
trial  by  jury,  which  is  usually  alternative  to  'law  of  the  land'  and  therefore 
apparently  displaceable  by  it,  is  often  further  safeguarded  by  a  clause 
rendering  it  inviolable  in  all  cases  in  which  it  had  hitherto  been  used,  a 
clause  to  which  the  members  of  the  legislature  were  sometimes  required  to 
take  special  oaths  of  fidelity.  In  the  second  place,  moreover,  if  'law  of  the 
land'  meant  something  else  than  statutory  enactment,  that  something  could 
have  been  only  the  common  law,  which,  however,  is  adopted  in  these  same 
constitutions,  when  specific  mention  is  made  of  it,  only  until  the  legisla- 
ture may  choose  to  alter  it.  Finally,  in  the  early  days  of  judicial  review, 
a  number  of  cases  arose  in  which  the  Law  of  the  Land  clause  would  cer- 
tainly have  been  brought  forward  had  it  been  deemed  available  as  a  con- 
stitutional restriction  upon  legislative  power.  The  argument  from  silence 
is  often  of  dubious  value,  but  in  a  case  of  this  sort  it  is  almost  conclu- 
sive:" Corwin,  The  Doctrine  of  Due  Process  of  Law  Before  the  Civil  War, 
24  Harv.  L.  Rev.  366,  370,  371.    See  also  24  Harv.  L.  Eev.  at  372. 

33  Consider  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  100,  101,  29 
Sup.  Ct.  14,  20,  53  L.  ed.  97;  Corwin,  The  Doctrine  of  Due  Process  of  Law 
Before  the  Civil  War,  24  Harv.  L.  Rev.  366,  373;  note  23,  supra;  and  also 
Montana  Co.  v.  St.  Louis  M.  &  M.  Co.  (1894)  152  U.  S.  160,  168,  14  Sup. 
Ct.  506,  508,  38  L.  ed.  398. 


168  DUE  PROCESS  CLAUSES— DISCUSSION. 

tion.^*  No  organ  of  govemmeiit  can  change  that  mean- 
ing. Such  a  change  can  be  made  only  by  constitutional 
amendment. 

But  while  the  meaning  which  the  term  ' '  the  law  of  the 
land"  had  when  placed  in  the  constitution  might  not  be 
changed,  it  certainly  does  not  follow  that  the  contents  of 
the  law  of  the  land,  except  so  much  of  it  as  is  the  supreme 
law  of  the  land,  might  not  be  changed  by  oifdinary  legisla- 
tion. The  distinction  will  be  shown  best  by  referring  to  a 
case  which  seems  to  be  analogous.  Congi'ess  cannot  so 
narrow  the  meaning  of  the  word  ''crimes"  in  the  second 
clause  of  Article  III  of  the  Federal  Constitution  as  to  al- 
low the  infliction  of  heavy  penalties  where  the  gnilt  of  the 
person  convicted  has  not  been  determined  by  a  jury;  yet, 
while  it  cannot  change  the  meaning  of  the  word  '  *  crimes, ' ' 
it  can  unquestionably  increase  or  diminish  the"  number  of 
crimes.^^  The  Constitution  did  not  crystallize  and  render 
unchangeable  the  criminal  law  of  a  hundred  and  twenty- 
five  years  ago.  And  so  also  the  fact  that  the  meaning  of 
the  term  ''the  law  of  the  land"  might  not  be  altered  by 
legislation  does  not  show  that  the  provisions  of  the  law  of 
the  land  might  not  be  changed  in  that  manner. 

The  "law  of  the  land"  may  be  different  in  the  several 
states. 

84.  Moreover,  just  as  the  meaning  of  the  due  process 
provision  of  the  Fourteenth  Amendment  remains  the  same 
from  year  to  year,  so  also  it  doubtless  has  the  same  mean- 
ing in  one  state  as  it  has  in  another.^^    But  it  does  not 

34  See  authorities  cited  at  beginning  of  note  11  in  Chapter  3,  supra. 

35  See  Schick  v.  United  States  (1904)  195  U.  S.  65,  24  Sup.  Ct.  826,  49 
L.  ed.  99;  and  also  The  Lottawanna  (1874)  21  Wall.  558,  576,  22  L.  ed.  654. 

36  See  King  v.  Mullins  (1898)  171  U.  S.  404,  422,  18  Sup.  Ct.  925,  932, 
43  L.  ed.  214. 


THE  LAW  OF  THE  LAND.  169 

follow  from  this  that  the  court  should  hold  that  the  pro- 
vision has  the  same  ultimate  legal  effect  in  all  states,  or, 
in  other  words,  that  a  procedure  which  must  be  observed 
in  one  state  in  order  to  afford  due  process  of  law  there 
must  be  observed  in  another  state  in  order  to  afford  due 
process  of  law  in  the  latter  state.  Just  as,  as  previously 
pointed  out,  there  may  be  changes  in  the  law  from  time 
to  time,  so  also  it  seems  clear  that  the  court  has  decided 
correctly  when  it  has  held  that  the  law  may  be  different  in 
different  states.^^ 

Judicial  alteration  of  the  "law  of  the  land." 

85.  The  statements  which  have  just  been  made  as  to  the 
alterability  of  the  law  of  the  land  may  seem  to  be  inconsis- 
tent with  the  decision  in  Twining  v.  New  Jersey,^^  one  of 
the  few  cases  in  the  United  States  Supreme  Court  in 
which  the  proposition  that  the  due  process  provision  is 
equivalent  to  the  provision  for  the  law  of  the  land  has 
been  expressly  made  the  basis  of  the  decision,^^  and  appar- 
ently the  only  recent  one  of  those  cases.  In  that  case  the 
court  hovered  around  the  thought  that  the  procedure 
which  existed  when  the  due  process  clause  was  adopted 
has  some  bearing  upon  the  constitutionality  of  procedure 
to-day,^**  and  while  the  court  conceded  that  the  early  pro- 

37  See  Walker  v.  Sauvinet  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678;  Missouri 
V.  Lewis  (1879)  101  U.  S.  22,  31,  25  L.  ed.  989;  Sauer  v.  New  York  (1907) 
206  U.  S.  536,  548,  27  Sup.  Ct.  686,  690,  51  L.  ed.  1176. 

38  (1908)   211  U.  S.  78,  29  Sup.  Ct.  14,  53  L.  ed.  97. 

39  211  U.  S.  at  100,  106,  108,  29  Sup.  Ct.  at  20,  22,  23,  53  L.  ed.  107. 

40  It  said  that  "WTiat  is  due  process  of  law  may  be  ascertained  by  an  ex- 
amination of  those  settled  usages  and  modes  of  proceedings  existing  in  the 
common  and  statute  law  of  England  before  the  emigration  of  our  ancestors, 
and  shown  not  to  have  been  unsuited  to  their  civil  and  political  condition 
by  having  been  acted  on  by  them  after  the  settlement  of  this  country:"  211 
U.  S.  at  100,  29  Sup.  Ct.  at  20,  53  L.  ed.  at  107.  (Compare  24  Harv.  L. 
Rev.  373;  21  Harv.  L.  Rev.  495,  496,  497.)     But  the  court,  instead  of  stand- 


170  DUE  PROCESS  CLAUSES— DISCUSSION. 

cedure  is  subject  to  some  changes,^ ^  it  said  that  ''consis- 
tently with  the  requirements  of  due  process,  no  change  in 
ancient  procedure  can  be  made  which  disregards  those 
fundamental  principles,  to  be  ascertained  from  time  to 
time  by  judicial  action,  which  have  relation  to  process  of 
law  and  protect  the  citizen  in  his  private  right,  and  guard 
him  against  the  arbitrary  action  of  government. ' '  ^^ 

But  we  must  note  that  in  that  case,  which  involved  sim- 
ply the  constitutionality  of  the  decision  of  a  state  court 
upon  a  question  of  evidence  and  in  which  that  decision 
was  sustained,  it  was  not  shown  that  the  state  court  had 
power  to  make  material  alterations  in  the  law  of  the  land 
as  it  existed  at  the  time  of  the  adoption  of  the  due  process 
provision  or  that  that  law  had  been  changed  by  legislation 
or  by  amendment  of  the  state  constitution.  For  that  rea- 
son an  inquiry  into  the  requirements  of  the  law  of  the 
land  as  it  stood  at  the  time  of  the  adoption  of  the  due 
process  provision  was  entirely  proper.^^  And  although 
this  point  was  not  brought  out  by  the  court,  it  marks  the 

ing  squarely  on  the  proposition  that  the  due  process  clause  requires  the 
observance  of  the  particular  procedure  which  was  in  accordance  with  the 
law  of  the  land  at  the  moment  when  the  due  process  clause  was  placed  in 
the  Constitution,  then  marked  the  limits  of  the  statement  which  it  had  just 
made  by  restating  it  in  the  following  quotation  from  Hurtado  v.  Cali- 
fornia (1884)  110  U.  S.  516,  528,  4  Sup.  Ct.  Ill,  292,  117,  28  L.  ed.  232, 
"  'A  process  of  law,  .  .  .  which  is  not  otherwise  forbidden,  must  be 
taken  to  be  due  process  of  law,  if  it  can  show  the  sanction  of  settled  usage 
both  in  England  and  this  country:'"  211  U.  S.  at  101,  29  Sup.  Ct.  at  20, 
53  L.  ed.  at  107. 

41  "It  does  not  follow,  however,  that  a  procedure  settled  in  English  law 
at  the  time  of  the  emigration,  and  brought  to  this  country  and  practiced  by 
our  ancestors,  is  an  essential  element  of  due  process  of  law.  If  that  were 
so  the  procedure  of  the  first  half  of  the  seventeenth  century  would  be 
fastened  upon  the  American  jurisprudence  like  a  straight  jacket,  only  to 
be  unloosed  by  constitutional  amendment:"  211  U.  S.  at  101,  29  Sup.  Ct. 
at  20,  53  L.  ed.  at  107.     See  also  cases  there  cited. 

42  211  U.  S.  at  101,  29  Sup.  Ct.  at  20,  53  L.  ed.  at  107. 

43  See  p.  105,  supra. 


ARGUMENT  CONCERNING  REDUNDANCY.  171 

extent  to  which  the  decision  may  be  relied  upon  in  the  in- 
terpretation of  the  provision  for  due  process  of  law. 

It  will  be  necessary  later  in  this  chapter  to  refer  more 
fully  to  the  expressions  of  the  court  which  have  just  been 
quoted  and  to  other  expressions  in  that  opinion.^^  They 
involve  questions  which  require  extended  treatment.  But 
it  seems  desirable,  before  doing  so,  to  consider  one  other 
argument  which  might  be  advanced  in  support  of  the  pro- 
position that  the  due  process  clauses  restrain  Congress 
and  the  state  legislatures  and  which  may  be  examined 
more  briefly. 

THE  ARGUMENT  CONCERNING  REDUNDANCY. 

The  question  stated. 

86.  The  Constitution  does  not  declare  what  constitutes 
a  ' '  due ' '  process.  Yet,  reading  the  words  in  their  natural 
sense,  it  seems  clear  that  it  means  simply  the  process 
which  the  person  involved  is  entitled  to  receive.  The  pro- 
vision does  not  say  that  there  must  be  a  suitable  process 
or  a  desirable  process.  It  does  not  purport  to  create  any 
new  rights.  It  simply  says  that  the  person  involved  shall 
receive  the  process  which  is  due  to  him.  The  dueness  of 
the  process  is  left  to  depend  upon  tests  which  are  extrinsic 
to  that  provision  of  the  Constitution. 

Now,  if  it  were  held  that ' '  due  process  of  law  is  process 
due  according  to  the  law  of  the  land"  ^^  and  that  so  much 
of  the  law  of  the  land  as  is  not  contained  in  the  Constitu- 
tion may  be  changed  by  the  appropriate  authorities,^*^  the 
provision  would  be  superfluous  in  the  Fifth  Amendment, 

44  See  sees.  92,  97,  infra. 

45  Walker  v.  Sauvinet  (1875)  92  U.  S.  90,  93,  23  L.  ed.  678. 

46  See  sees.  31,  33,  supra,  97,  infra. 


172  DUE  PROCESS  CLAUSES— DISCUSSION. 

although,  for  reasons  which  will  be  pointed  out,  it  would 
not  be  superfluous  in  the  Fourteenth  Amendment.  And  it 
may  be  urged  that  an  interpretation  of  a  clause  of  the 
Constitution  under  which  that  clause  must  be  considered 
useless  is  necessarily  unsound  and  that,  therefore,  the  pro- 
vision must  have  some  other  meaning. 


'^b' 


The  question  elaborated. 

87.  If  the  due  process  clause  of  the  Fifth  Amendment 
were  held  to  require  merely  that  the  procedure  followed 
when  a  person  is  deprived  of  life,  liberty  or  property  must 
be  that  procedure  which  has  been  prescribed  by  the  gov- 
ernmental organ  which  has  authority  to  prescribe  the  pro- 
cedure, the  clause  would  be  unnecessary,  since  the  same 
restraint  is  contained  in  those  clauses  of  the  Constitution 
which  distribute  governmental  powers  among  three  de- 
partments of  government. 

The  due  process  clause  of  the  Fifth  Amendment  would 
still  be  superfluous  even  though  it  were  held  to  require 
also  that  the  procedure  do  not  violate  procedural  rights 
which  are  secured  by  other  provisions  of  the  Federal  Con- 
stitution; and  so  also  would  the  clause  in  the  Fourteenth 
Amendment  be  superfluous  if  it  referred  merely  to  those 
procedural  rights  which  are  secured  by  other  provisions 
of  the  Federal  Constitution,  such  as  the  prohibition  of 
bills  of  attainder  and  the  full  faith  and  credit  clause. 

The  due  process  clause  of  the  latter  Amendment  could 
not  be  regarded  as  superfluous  if  it  were  held  to  include 
in  its  protection  procedural  rights  secured  by  the  respec- 
tive state  constitutions  or  by  statutes  or  subordinate  regu- 
lations*''' in  those  states,  inasmuch  as  questions  of  com- 
pliance with  the  procedural  requirements  would  thus  be 

47  As  rules  of  court,  ordinances,  administrative  regulations. 


ARGUMENT  CONCERNING  REDUNDANCY.  173 

made  federal  questions.  But,  as  a  matter  of  fact,  the 
United  States  Supreme  Court  in  cases  coming  from  state 
courts  does  not  inquire  whether  the  action  of  an  organ  of 
state  government  conforms  to  the  procedural  require- 
ments of  the  state  constitution  ^^  or  to  other  valid  proced- 
ural restraints  upon  the  organs  of  government;'*^  and  in 
cases  arising  in  federal  courts  those  courts  follow  the  in- 
terpretations which  have  been  given  to  the  state  constitu- 
tions and  the  state  statutes  by  the  state  courts.^" 

Now,  unless  the  United  States  Supreme  Court  has  de- 
cided incorrectly  when  it  declared  that  the  Fourteenth 
Amendment  "did  not  radically  change  the  whole  theory 
of  the  relations  of  the  state  and  federal  governments  to 
each  other,  and  of  both  governments  to  the  people,"  ^^  the 
federal  courts  unquestionably  ought,  as  a  general  rule,  to 

48  See  note  45  in  Chapter  3,  supra. 

49  See  note  46  in  Chapter  3,  supra. 

50  See  note  47  in  Chapter  3,  supra. 

51  Felts  V.  Murphy  (1906)  201  U.  S.  123,  129,  26  Sup.  Ct.  366,  368,  50 
L.  ed.  689;  Orr  v.  Gilman  (1902)  183  U.  S.  278,  286,  22  Sup.  Ct.  213,  216, 
46  L.  ed.  213;  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  593,  20  Sup.  Ct.  448, 
494,  453,  44  L.  ed.  597;  McPherson  v.  Blacker  (1892)  146  U.  S.  1,  39,  13 
Sup.  Ct.  3,  12,  36  L.  ed.  869;  In  re  Kemmler  (1890)  136  U.  S.  436,  448,  10 
Sup.  Ct.  930,  934,  34  L.  ed.  519.  See  also  Slaughter  House  Cases  (1872) 
16  Wall.  36,  78,  21  L.  ed.  394;  Fallbrook  Irr.  Dist.  v.  Bradley  (1896)  164 
U.  S.  112,  157,  17  Sup.  Ct.  56,  62,  41  L.  ed.  369;  Giozza  v.  Tiernan  (1893) 
148  U.  S.  657,  662,  13  Sup.  Ct.  721,  723,  37  L.  ed.  599;  Davidson  v.  New 
Orleans  (1877)  96  U.  S.  97,  103,  104,  24  L.  ed.  616;  Hodges  v.  United  States 
(1906)  203  U.  S.  1,  16,  27  Sup.  Ct.  6,  8,  51  L.  ed.  65;  Robertson  v.  Bald- 
win (1897)  165  U.  S.  275,  281,  17  Sup.  Ct.  326,  329,  41  L.  ed.  715; 
the  quotation  of  Providence  Bk.  v.  Billings  (1830)  4  Pet.  514,  563,  7  L. 
ed.  939,  with  apparent  approval  in  Michigan  C.  R.  Co.  v.  Powers  (1906)  201 
U.  S.  245,  296,  26  Sup.  Ct.  459,  463,  50  L.  ed.  744;  and  the  language  of 
Holmes,  J.,  in  Interstate  C.  S.  Ry.  Co.  v.  Commonwealth  (1907)  207  U.  S. 
79,  87,  28  Sup.  Ct.  26,  28,  52  L.  ed.  Ill;  Otis  Co.  v.  Ludlow  M.  Co.  (1906) 
201  U.  S.  140,  154,  26  Sup.  Ct.  353,  355,  50  L.  ed.  696;  Paddell  v.  City  of 
New  York  (1908)  211  U.  S.  446,  448,  29  Sup.  Ct.  139,  53  L.  ed.  275;  Laurel 
Hill  Cemetery  v.  San  Francisco  (1910)  216  U.  S.  358,  366,  30  Sup.  Ct.  301, 
302,  54  L.  ed.  515.     Compare  32  Am.  L.  Reg.  N.  S.  1096,  1097. 


174  DUE  PROCESS  CLAUSES— DISCUSSION. 

follow  the  decisions  of  state  courts  in  matters  of  state  law. 
But,  in  view  of  tlie  due  process  clause,  it  is  quite  possible 
that  they  would  be  justified  in  going  so  far  as  to  inquire 
into  the  observance  of  procedural  requirements;  and  the 
failure  of  the  federal  courts  to  make  such  inquiries  may 
be  due  to  the  fact  that  they  have  never  considered  suffi- 
ciently the  propriety  of  doing  so.^^ 

Still,  under  any  of  the  interpretations  of  the  due  pro- 
cess provision  which  have  just  been  suggested,  the  clause 
in  the  Fifth  Amendment  must  be  regarded  as  superfluous. 

Discussion  of  question  of  redundancy. 

88.  But  it  is  not  self-evident  that  there  can  be  no  repe- 
tition of  thought  in  the  Constitution,  and  while  the  fact 
that  under  a  particular  interpretation  a  provision  of  the 
Constitution  would  be  superfluous  is  entitled  to  weight,^^ 
it  is  not  sufficient  to  prove  that  that  interpretation  is  in- 
correct. Certainly  if  the  provision  had  that  meaning  be- 
fore it  was  placed  in  the  Constitution,  or  if  there  is  a  suffi- 
cient explanation  of  its  insertion,  although  superfluous,  in 

52  Professor  Henry  Schofield,  in  3  111.  L.  Rev.  195,  contends  that  the 
United  States  Supreme  Court  should  inquire  whether  state  courts  clearly 
disregard  or  misapply  the  laws  of  their  respective  states.  He  does  not,  how- 
ever, limit  his  contention  to  laws  dealing  with  procedure.  See  latter  part 
of  note  47  in  Chapter  3,  supra,  on  the  position  of  the  Supreme  Court  on 
this  question. 

SSHurtado  v.  California  (1884)  110  U.  S.  51G,  534,  4  Sup.  Ct.  Ill,  292, 
120,  28  L.  ed.  232;  Marbury  v.  Madison  (1803)  1  Cranch,  137,  174,  2  L.  ed. 
60.  See  also  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  105,  24  L.  ed. 
616;  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  110,  29  Sup.  Ct.  14,  24, 
53  L.  ed.  97;  Mackin  v.  United  States  ( 1886)  117  U.  S.  348,  351,  352,  6  Sup. 
Ct.  777,  778,  779,  29  L.  ed.  909;  Minor  v.  Happersett  (1874)  21  Wall. 
162,  175,  22  L.  ed.  627;  In  re  Kemmler  (1890)  136  U.  S.  436,  448,  10  Sup. 
Ct.  930,  934,  34  L.  ed.  519;  HalHnger  v.  Davis  (1892)  146  U.  S.  314,  323, 
13  Sup.  Ct.  105,  108,  36  L.  ed.  986;  4  Harv.  L.  Rev.  at  381;  Western  U. 
T.  Co.  V.  Railroad  Comn.  of  La.  (1908)  120  La.  758,  45  So.  598.  Compare 
Yesler  v.  Washington  H.  L.  Comrs.  (1892)  146  U.  S.  646,  655,  13  Sup.  Ct. 
190,  194,  36  L.  ed.  1119. 


AUGUMENT  CONCERNING  EEDUNDANCY.  175 

the  Constitution,  or  if  a  different  interpretation  would 
require  an  exercise  by  the  courts  of  a  power  which  was 
not  granted  to  them  by  the  Constitution— such  circum- 
stances must  outweigh  any  argument  concerning  redund- 
ancy. 

The  due  process  provision  did  not  make  its  first  appear- 
ance in  the  Fifth  Amendment.^^  It  had  an  English  origin. 
The  meaning  which  the  provision  possessed  before  it  was 
placed  in  the  Federal  Constitution  may  properly  be  con- 
sidered by  the  court;  and  for  that  reason  when  the  court 
declared  in  Walker  v.  Sauvinet^"  that  ''due  process  of 
law  is  process  due  according  to  the  law  of  the  land"  its 
statement  is  plausible,  and  that  statement  must  be  ac- 
cepted unless  it  can  be  shown  to  be  incorrect  or  unless  the 
validity  of  some  different  statement  can  be  established. 

The  provision  occurs  in  the  Federal  Constitution  ap- 
parently as  a  survival  from  earlier  times.  Those  who 
adopted  the  Fifth  Amendment  probably  did  not  realize 
when  they  placed  the  due  process  provision  in  the  Consti- 
tution that  those  clauses  of  the  Constitution  which  dis- 
tribute governmental  powers  among  three  departments  of 
government  by  necessary  implication  provide  that  the 
procedure  followed  must  be  one  which  has  been  prescribed 
by  the  governmental  organ  which  has  authority  to  pre- 
scribe the  procedure  and  that  it  was  unnecessary  for  them 
to  follow  precedent  and  insert  the  same  restraint  also  in 
the  form  in  which  it  appeared  in  the  English  constitution. 
Or  they  may  have  desired,  even  at  the  expense  of  repeti- 
tion, to  make  this  restraint  perfectly  clear,  through  fear 
that  there  might  some  day  come  into  power  a  president 
who  would  not  have  a  scrupulous  regard  for  the  constitu- 
tional limitations  upon  his  authority. 

54  See  note  24,  supra. 

55  (1875)   92  U.  S.  90,  93,  23  L.  ed.  678. 


176  DUE  PROCESS  CLAUSES— DISCUSSION. 

And,  finally,  there  is  no  other  natural  meaning  of  the 
words  "due  process  of  law"  than  'Hhe  process  to  which 
the  person  involved  is  entitled  under  the  law  of  the  land. ' ' 
The  Constitution  simply  says  that  he  shall  receive  the  pro- 
cess which  is  due  to  him.  There  is  nothing  in  the  pro- 
vision to  show  that  those  who  adopted  the  Fifth  Amend- 
ment intended  to  create  any  other  test  of  dueness  than 
that  which  would  have  existed  if  the  provision  had  never 
been  placed  in  the  Constitution.  There  is  nothing  in  the 
Constitution  which  so  perpetuates  the  law  of  the  land  as  it 
existed  when  the  provision  was  adopted  as  to  interfere 
with  its  alteration  by  the  appropriate  authorities.^^  And 
for  the  courts  to  declare  tests  of  dueness  which  are  not 
authorized  by  the  Federal  Constitution  is  to  exercise  a 
veto-power  which  it  was  never  intended  that  they  should 
exercise,^'^  and  is  judicial  usurpation  of  the  most  serious 
character.^  ^ 

DISCRIMINATION. 

Position  of  court  on  discriminatory  state  action. 

89.  In  a  case  in  which  no  objection  was  made  to  the 
method  of  adoption  or  enforcement  of  an  ordinance  sus- 
tained by  state  authority,  the  court  of  last  resort  has  de- 
clared that,  under  the  due  process  clause  of  the  Four- 
teenth Amendment,  the  discriminatory  character  of  the 
ordinance  was  an  objection  to  its  validity.^^    In  a  case  in 

56  See  sees.  31,  33,  supra,  97,  infra. 

57  See  authorities  cited  in  note  13,  supra. 

58  For  instance  of  comments  by  recent  writers  see  Boudin,  Government  by 
Judiciary,  26  Pol.  Sci.  Quar.  238,  264,  266,  267  et  seq. 

59  Dobbins  v.  Los  Angeles  (1904)  195  U.  S.  223,  25  Sup.  Ct.  18,  49  L.  ed. 
169.  The  city  had  fixed  limits  within  which  gas  works  might  be  built.  An 
individual  had  promptly  bought  land  within  that  district,  secured  a  permit 
and  spent  thousands  of  dollars  on  the  erection  of  a  plant.     Shortly  there- 


DISCRIMINATION.  177 

which  a  state  board  discriminated  in  the  assessment  of 
taxes  upon  property  of  the  same  class,  the  action  of  the 
state  board  was  also  held  to  be  in  violation  of  the  Four- 
teenth Amendment.^"  And  the  court  has  declared  that  ar- 
bitrary exercises  of  the  power  of  a  state  over  an  individ- 
ual would  violate  the  due  process  requirement,  apparently 
using  the  word  ''arbitrary,"  in  some  instances,  at  least, 
as  meaning  "not  in  accordance  with  fixed  rules,"  ^^  al- 

after  the  city  so  changed  the  limits  as  to  exclude  the  new  structure  from 
the  privileged  district.  The  state  court  upheld  the  latter  ordinance,  but  the 
court  of  last  resort  reversed  that  judgment,  saying  that  where  an  ordinance 
oppresses  or  discriminates  against  a  class  or  an  individual  the  courts  may 
consider  the  purpose  of  the  ordinance.  "We  think  the  allegations  of  the 
bill  disclose  such  character  of  territory,  such,  sudden  and  unexplained 
change  of  its  limits  after  the  plaintiff  in  error  had  purchased  the  property 
and  gone  forward  with  the  erection  of  the  works,  as  to  bring  it  within  that 
class  of  cases  wherein  the  court  may  restrain  the  arbitrary  and  discrimina- 
tory exercise  of  the  police  power  which  amounts  to  a  taking  of  property 
without  due  process  of  law  and  an  impairment  of  property  rights  protected 
by  the  Fourteenth  Amendment:"  195  U.  S.  240,  241,  25  Sup.  Ct.  22,  49  L. 
ed.  177.  Compare  Patterson  v.  Colorado  (1907)  205  U.  S.  454,  461,  27  Sup. 
Ct.  556,  557,  51  L.  ed.  879;  Yick  Wo  v.  Hopkins  (1886)  118  U.  S.  356,  6 
Sup.  Ct.  1064,  30  L.  ed.  220,  cited  in  Dobbins  v.  Los  Angeles,  was  decided 
under  the  equal  protection  provision. 

60  Raymond  v.  Chicago  U.  T.  Co.  (1907)  207  U.  S.  20,  28  Sup.  Ct.  7,  52 
L.  ed.  78.  The  court  speaks  of  both  the  due  process  and  the  equal  protec- 
tion provision  of  the  Fourteenth  Amendment,  so  that  it  is  not  entirely  clear 
under  which  clause  the  court  held  the  action  of  the  state  board  to  be  un- 
constitutional; but  the  opinion  may  be  read  in  the  light  of  the  dissenting 
opinion,  which  refers  only  to  the  due  process  provision. — On  the  bearing  of 
the  due  process  clause  on  discrimination,  see  also  Hibben  v.  Smith  (1903) 
191  U.  S.  310,  326,  24  Sup.  Ct.  88,  92,  48  L.  ed.  195;  Lake  S.  &  M.  S.  Ry. 
Co.  V.  Smith  (1899)  173  U.  S.  684,  691,  19  Sup.  Ct.  565,  568,  43  L.  ed.  858; 
Eldridge  v.  Trezevant  (1896)  100  U.  S.  452,  468,  16  Sup.  Ct.  345,  349,  40  L. 
ed.  490;  Marchant  v.  Pennsylvania  R.  Co.  (1894)  153  U.  S.  380,  386,  14 
Sup.  Ct.  894,  896,  38  L.  ed.  751;  In  re  Converse  (1891)  137  U.  S.  624,  632, 
11  Sup.  Ct.  191,  193,  34  L.  ed.  796;  In  re  Kemmler  (1890)  136  U.  S.  436, 
448,  449,  10  Sup.  Ct.  930,  934,  34  L.  ed.  519;  Hurtado  v.  California  (1884) 
110  U.  S.  516,  535,  4  Sup.  Ct.  Ill,  292,  121,  28  L.  ed.  232;  Bacon  v.  Walker 
(1907)  204  U.  S.  311,  27  Sup.  Ct.  289,  51  L.  ed.  499;  New  York  ex  rel. 
Hatch  v.  Reardon  (1907)  204  U.  S.  152,  27  Sup.  Ct.  188,  51  L.  ed.  415; 
People  v.  Van  de  Carr  (1905)  199  U.  S.  552,  26  Sup.  Ct.  144,  50  L.  ed.  305. 

61  See  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  111,  113,  29  Sup.  Ct. 


178  DUE  PROCESS  CLAUSES— DISCUSSION. 

though  the  court  concedes  that  such  fixed  rules  may  be 
limited  in  their  scope,  saying  that  *'If  an  evil  is  specially 
experienced  in  a  particular  branch  of  business,  the  Con- 
stitution embodies  no  prohibition  of  laws  confined  to  the 
evil,  or  doctrinaire  requirement  that  they  should  be 
couched  in  all-embracing  terms.  It  does  not  forbid  the 
cautious  advance,  step  by  step,  and  the  distrust  of  gener- 
alities which  sometimes  have  been  the  weakness,  but  often 
the  strength,  of  English  legislation. ' '  ^^ 

Position  of  court  on  fraud  and  improper  motives. 

90.  Possibly  it  is  on  the  same  or  a  similar  ground  that 
the  court  has  suggested  that  a  deprivation  of  property  by 
an  administrative  authority  would  be  without  due  process 

14,  25,  53  L.  ed.  97;  Dobbins  v.  Los  Angeles  (1904)  195  U.  S.  223,  241,  25 
Sup.  Ct.  18,  22,  49  L.  ed.  169;  People  v.  Van  de  Carr  (1905)  199  U.  S. 
552,  558,  560,  26  Sup.  Ct.  144,  145,  146,  50  L.  ed.  305 ;  Jacobson  v.  Massa- 
chusetts (1905)  197  U.  S.  11,  28,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643;  Hib- 
ben  V.  Smith  (1903)  191  U.  S.  310,  325,  24  Sup.  Ct.  88,  92,  48  L.  ed.  195; 
Hodgson  V.  Vermont  (1897)  168  U.  S.  262,  272,  18  Sup.  Ct.  80,  83,  42  L. 
ed.  461;  Giozza  v.  Tiernan  (1893)  148  U.  S.  657,  662,  13  Sup.  Ct.  721,  724, 
37  L.  ed.  599;  Leeper  v.  Texas  (1891)  139  U.  S.  462,  468,  11  Sup.  Ct.  577, 
579,  35  L.  ed.  225;  Caldwell  v.  Texas  (1891)  137  U.  S.  692,  697,  698,  11 
Sup.  Ct.  224,  226,  34  L.  ed.  816;  In  re  Converse  (1891)  137  U.  S.  624,  631, 
632,  11  Sup.  Ct.  191,  193,  34  L.  ed.  796;  Dent  v.  West  Virginia  (1889)  129 
U.  S.  114,  123,  124,  9  Sup.  Ct.  231,  234,  32  L.  ed.  623;  Hurtado  v.  Cali- 
fornia (1884)  110  U.  S.  516,  536,  4  Sup.  Ct.  Ill,  292,  121,  28  L.  ed.  232; 
and  also  Quong  Wing  v.  Kirkendall  (1912)  223  U.  S.  59,  62,  32  Sup.  Ct. 
192,  193,  56  L.  ed.  350;  Kentucky  U.  Co.  v.  Kentucky  (1911)  219  U.  S.  140, 
161,  31  Sup.  Ct.  171,  180,  55  L.  ed.  137;  Bacon  v.  Walker  (1907)  204  U.  S. 
311,  27  Sup.  Ct.  289,  51  L.  ed.  499;  Missouri  P.  Ry.  Co.  v.  Humes  (1885) 
115  U.  S.  512,  519,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463;  dissenting  opinion 
in  Fong  Yue  Ting  v.  United  States  (1893)  149  U.  S.  698,  763,  13  Sup.  Ct. 
1016,  1041,  37  L.  ed.  905;  24  Harv.  L.  Rev.  476,  note.— On  the  word 
"arbitrary"  as  used  in  another  sense,  see  sees.  105,  116,  117,  infra. 

02  Carroll  v.  Greenwich  I.  Co.  (1905)  199  U.  S.  401,  411,  26  Sup.  Ct.  66, 
67,  50  L.  ed.  246.  See  also  Lindsley  v.  Natural  C.  G.  Co.  ( 1911 )  220  U.  S.  61, 
81,  31  Sup.  Ct.  337,  341,  55  L.  ed.  369;  Sperry  &  Hutchinson  Co.  v.  Rhodes 
(1911)  220  U.  S.  502,  505,  31  Sup.  Ct.  490,  491,  55  L.  ed.  561;  Johnson  v. 
United  States    (1913)    228  U.  S.  457,  458,  33  Sup.  Ct.  572,  57  L.  ed.  919. 


DISCRIMINATION.  179 

of  law  if  it  were  the  result  of  fraud.^^  The  court  has,  how- 
ever, declared  that  it  cannot  inquire  whether  a  legislature 
acted  corruptly.^^    ''The  decisions  of  this  court  from  the 

63  For  declarations  on  the  finality  of  administrative  decisions  in  tlie 
absence  of  fraud  see  Chicago,  B.  &  Q.  Ry.  Co.  v.  Babcock  (1907)  204  U.  S. 
585,  598,  27  Sup.  Ct.  326,  329,  51  L.  ed.  636;  People  v.  New  Y.  S.  B.  of  T. 
Comrs.  (1905)  199  U.  S.  48,  52,  25  Sup.  Ct.  713,  715,  50  L.  ed.  79;  Field 
V.  Barber  A.  P.  Co.  (1904)  194  U.  S.  618,  624,  625,  24  Sup.  Ct.  784,  787,  48 
L.  ed.  1142;  San  Diego  L.  &  T.  Co.  v.  Jasper  (1903)  189  U.  S.  439,  441, 
23  Sup.  Ct.  571,  572,  47  L.  ed.  892  (where  water  rates  were  involved); 
Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503,  515,  516,  22  Sup. 
Ct.  95,  100,  46  L.  ed.  298;  Fallbrook  Irr.  Dist.  v.  Bradley  (1896)  164  U.  S. 
112,  168,  169,  17  Sup.  Ct.  56,  66,  67,  41  L.  ed.  369;  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Backus  (1894)  154  U.  S.  421,  434,  14  Sup.  Ct.  1114,  1120,  38  L. 
ed.  1031;  and  also  Coulter  v.  Louisville  &  N.  R.  Co.  (1905)  196  U.  S.  599,  25 
Sup.  Ct.  342,  49  L.  ed.  615;  City  of  Seattle  v.  Kelleher  (1904)  195  U.  S.  351, 
359,  25  Sup.  Ct.  44,  45,  49  L.  ed.  232 ;  California  R.  Co.  v.  Sanitary  R.  Works 

(1905)  199  U.  S.  306,  320,  26  Sup.  Ct.  100,  104,  50  L.  ed.  204;  Adams  Ex. 
Co.  V.  Ohio  (1897)  165  U.  S.  194,  229,  17  Sup.  Ct.  305,  312,  41  L.  ed.  683; 
United  States  v.  California  &  O.  L.  Co.  (1893)  148  U.  S.  31,  43,  13  Sup.  Ct. 
458,  463,  37  L.  ed.  354.  In  Dobbins  v.  Los  Angeles  (1904)  195  U.  S.  223, 
240,  25  Sup.  Ct.  18,  22,  49  L.  ed.  169,  the  court  said,  "Whether,  when  it 
appears  that  the  facts  would  authorize  the  exercise  of  the  power,  the  courts 
will  restrain  its  exercise  because  of  alleged  wrongful  motives  inducing  the 
passage  of  an  ordinance  is  not  a  question  necessary  to  be  determined  in 
this  case,  but  where  the  facts  as  to  the  situation  and  conditions  are  such  as 
to  establish  the  exercise  of  the  police  power  in  such  manner  as  to  oppress 
or  discriminate  against  a  class  or  an  individual  the  courts  may  consider  and 
give  weight  to  such  purpose  in  considering  the  validity  of  the  ordinance." 
See  also  Henderson  B.  Co.  v.  Henderson  City  (1899)  173  U.  S.  592,  614, 
616,  19  Sup.  Ct.  553,  562,  43  L.  ed.  823;  Backus  v.  Fort  S.  U.  D.  Co.  (1898) 
169  U.  S.  557,  576,  18  Sup.  Ct.  445,  452,  42  L.  ed.  853;  Vicksburg  v.  Vicks- 
burg  W.  Co.  (1907)  206  U.  S.  498,  27  Sup.  Ct.  762,  51  L.  ed.  1155;  quota- 
tions in  French  v.  Barber  A.  P.  Co.  (1901)  181  U.  S.  324,  336,  337,  340,  21 
Sup.  Ct.  625,  629,  630,  631,  45  L.  ed.  879;  latter  part  of  note  64,  infra.  With 
cases  in  this  note  compare  Spring  V.  W.  v.  San  Francisco  (1903)  124  Fed. 
574,  584-588. 

64  This  was  asserted  in  Angle  v.  Chicago,  St.  P.,  M.  &  0.  Ry.  Co.  (1894) 
151  U.  S.  1,  18,  14  Sup.  Ct.  240,  247,  38  L.  ed.  55,  where,  however,  no  refer- 
ence was  made  to  the  due  process  provision,  and  in  concurring  opinion  in 
Taylor  and  Marshall  v.  Beckham  (1900)  178  U.  S.  548,  585,  20  Sup.  Ct. 
890,  1009,  903,  44  L.  ed.  1187,  where  the  due  process  clause  was  directly 
involved.  See  also  Calder  v.  Michigan  (1910)  218  U.  S.  591,  598,  31  Sup, 
Ct.  122,  123,  54  L.  ed.  1163;  United  States  v.  Des  Moines  N.  &  Ry.  Co. 
(1892)    142  U.  S.  510,  545,  12  Sup.  Ct.  308,  318,  35  L.  ed.   1099;   United 


180  DUE  PROCESS  CLAUSES— DISCUSSION. 

beginning  lend  no  support  whatever  to  the  assumption 
that  the  judiciary  may  restrain  the  exercise  of  lawful 
power  on  the  assumption  that  a  wrongful  purpose  or  mo- 
tive has  caused  the  power  to  be  exerted.  .  .  .  No  case 
can  be  found  announcing  such  a  doctrine,  and  on  the 
contrary  the  doctrine  of  a  number  of  cases  is  inconsistent 
with  its  existence. ' '  ^^ 

Discussion. 

91.  On  the  other  hand,  the  court  has  declared  once  or 
twice  that  Congress  is  not  forbidden  by  the  Constitution 
to  enact  discriminatory  legislation.^^     Now,  as  the  due 

States  V.  Old  Settlers  (1893)  148  U.  S.  427,  466,  13  Sup.  Ct.  650,  666,  37 
L.  ed.  509;  The  Chinese  Exclusion  Case  (1889)  130  U.  S.  581,  603,  9  Sup. 
Ct.  623,  629,  32  L.  ed.  1068;  Soon  Hing  v.  Crowley  (1885)  113  U.  S.  703, 
711,  5  Sup.  Ct.  730,  734,  28  L.  ed.  1145;  6  A.  &  E.  Enc.  of  L.,  2d  ed.,  1087; 
Wigmore  on  Evidence,  p.  1656;  Sutherland,  Statutory  Construction,  sec. 
84;  Cooley,  Constitutional  Limitations,  7th  ed.,  p.  258;  Dillon,  Municipal 
Corporations,  5th  ed.,  p.  1157;  Willoughby  on  the  Constitution,  p.  18;  Polk 
V.  Mutual  R.  F.  L.  Assn.  (1907)  207  U.  S.  310,  326,  28  Sup.  Ct.  65,  71,  52  L. 
ed.  222;  Red  "C"  O.  Co.  v.  Board  of  Agriculture  (1912)  222  U.  S.  380,  392, 
32  Sup.  Ct.  152,  154,  56  L.  ed.  240;  Hammond  P.  Co.  v.  Arkansas  (1909) 
212  U.  S.  322,  343,  29  Sup.  Ct.  370,  377,  53  L.  ed.  530;  Ellis  v.  United 
States  (1907)  206  U.  S.  246,  256,  27  Sup.  Ct.  600,  601,  51  L.  ed.  1047; 
separate  opinion  of  Taney,  C.  J.,  in  License  Cases  (1847)  5  How.  504,  583, 
12  L.  ed.  256.  Compare  Dillon,  Municipal  Corporations,  5th  ed.,  pp.  1157, 
1158;  and  also  the  case  of  Lochner  v.  New  York  (1905)  198  U.  S.  45,  63, 
25  Sup.  Ct.  539,  545,  49  L.  ed.  937,  where  the  motive  of  the  legislature  is 
considered,  although  fraud  is  not  charged,  and  the  comments  on  this  case 
in  Green  Bag,  1905,  p.  414. — On  proving  improper  motives  see  Coulter  v. 
Louisville  &  N.  R.  Co.  (1905)  196  U.  S.  599,  610,  25  Sup.  Ct.  342,  345,  49 
L.  ed.  615,  and  Soon  Hing  v.  Crowley  (1885)  113  U.  S.  703,  711,  5  Sup. 
Ct.  730,  734,  28  L.  ed.  1145,  which  arose  under  the  equal  protection  pro- 
vision; and  see  Fayerweather  v.  Ritch  (1904)  195  U.  S.  276,  307,  26  Sup. 
Ct.  58,  67,  68,  49  L.  ed.  193;  Chicago,  B.  &  Q.  R.  Co.  v.  Babcock  (1907) 
204  U.  S.  585,  593,  27  Sup.  Ct.  326,  327,  51  L.  ed.  636,  on  proving  the 
reasons  for  a  decision. 

65McCray  v.  United  States  (1904)  195  U.  S.  27,  56,  24  Sup.  Ct.  769,  776, 
49  L.  ed.  78. 

66  United  States  v.  Delaware  &  H.  Co.  (1909)  213  U.  S.  366,  417,  29  Sup. 
Ct.  527,  539,  53  L.  ed.  836.    See  also  District  of  Columbia  v.  Brooke   (1909) 


DISCRIMINATION.  181 

process  clause  of  the  Fifth  Amendment  applies  to  Con- 
gress,^^  and  as  we  may  assume  that  that  clause  has  in 
general  the  same  meaning  as  the  due  process  clause  of  the 
Fourteenth  Amendment,''^  these  statements  seem  to  be  in- 
consistent with  the  other  decisions  which  we  have  con- 
sidered under  this  topic. 

In  the  effort  to  harmonize  the  statements  it  may  be  said 
with  truth  that  in  deciding  cases  which  arose  under  the 
Fourteenth  Amendment  the  court  has  not  always  been 
careful  to  specify  the  provision  of  the  Fourteenth  Amend- 
ment under  which  the  case  was  decided ;  that  the  court  has 
in  some  respects  regarded  the  due  process  provision  and 
the  equal  protection  provision  as  almost  interchangeable ; 
and  it  may,  therefore,  be  thought  that  the  decisions  may 
be  harmonized  by  saying  that  discriminatory  govern- 
mental action  is  forbidden  by  the  equal  protection  provi- 
sion rather  than  by  the  due  process  provision. 

There  is  some  force  in  this  explanation  of  the  decisions, 
but  it  is  not  sufficient.  The  decisions  are  also  probably 
based  in  large  measure  upon  an  interpretation  of  the  due 
process  provision  which  if  correct  should  apply  to  both  the 
state  and  the  federal  governments.  It  may  be  said  that 
the  provision  for  due  process  of  law  is  equivalent  to  a  pro- 
vision for  the  law  of  the  land,  that  the  law  of  the  land  must 
be  a  law  which  applies  uniformly  throughout  the  entire 
land,  and  that,  therefore,  discriminatory  governmental 
action  must  be  in  violation  of  the  due  process  provision.^^ 

214  U.  S.  138,  149,  29  Sup.  Ct.  560,  563,  53  L.  ed.  941.  Compare  13  Law 
Notes,  81,  with  43  Am.  L.  Rev.  926. 

67  See  note  1  in  Chapter  3,  supra. 

68  See  note  6  in  Chapter  3,  supra. 

69  See  argument  of  counsel  in  Dartmouth  College  v.  Woodward  (1819)  4 
Wheat.  518,  581,  4  L.  ed.  629;  McGehee,  Due  Process  of  Law,  60,  61;  Cor- 
win,  The  Doctrine  of  Due  Process  of  Law  Before  the  Civil  War,  24  Harv.  L. 
Rev.  366,  382,  383;  Freund,  Police  Power,  pp.  632,  633. 


182  DUE  PROCESS  CLAUSES— DISCUSSION. 

The  weakness  of  such  a  contention  lies  simply  in  the  fact 
that  it  has  not  been  shown  that  for  a  law  to  be  the  law  of 
the  land  it  must  apply  uniformly  throughout  the  jurisdic- 
tion."^^ And,  of  course,  until  that  is  shown  the  court  is  not 
justified  in  declaring  governmental  action  unconstitu- 
tional upon  any  such  ground. 

Thus  far  the  court  has  not  applied  to  legislation  the 
principle  that  governmental  action  which  is  discrimina- 
tory violates  the  due  process  provision.  And  while  we 
have  seen  strong  reasons  for  doubting  whether  that  pro- 
vision forbids  such  action  by  an  administrative  body,  such 
action  may  at  times  be  held  illegal  or  unconstitutional 
upon  other  grounds.  It  may  be  illegal  because  inconsis- 
tent with  legislation,  or  if  based  upon  a  broad  grant  of  dis- 
cretion that  grant  of  discretion  may  be  unconstitutional 
because  it  constitutes  a  delegation  of  legislative  power. 
But  we  are  now  considering  simply  the  question  whether 
discriminatory  governmental  action  is  forbidden  by  the 
due  process  provision,  and  there  does  not  seem  to  be  a 
sufficient  justification  for  saying  that  the  court  should 
hold  that  such  action  is  forbidden  by  the  requirement  of 
due  process  of  law. 

CONSTITUTIONAL    AND     EXTRA-CONSTITUTIONAL    RE- 
STRAINTS. 

Inconsistent  positions  taken. 

92.  In  deciding  cases  which  arose  under  the  due  pro- 
cess clauses  the  Supreme  Court  has  at  different  times 
taken  two  positions  concerning  the  powers  of  government 

70  See  argument  on  "lex  terrae"  in  State  v.  (1794)    I  Hayw.    (N. 

C.)  28,  32;  Corwin,  ubi  supra,  24  Harv.  L.  Rev.  at  476,  note;  Missouri  v. 
Lewis  (1879)  101  U.  S.  22,  31,  32,  25  L.  ed.  989;  note  20  in  Chapter  2, 
supra;  note  17  in  Chapter  5,  infra. 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  183 

which  are  unquestionably  inconsistent  with  each  other. 
According  to  one  position  the  state  legislatures  over  sub- 
ject-matters not  withdrawn  from  their  control,  and  Con- 
gress over  subject-matters  entrusted  to  it,  have  all  gov- 
ernmental powers  which  are  not  entrusted  by  the  constitu- 
tions to  other  organs  of  government  and  which  are  not 
withdrawn  from  the  control  of  those  legislative  bodies  by 
other  provisions  of  the  constitutions.  This  position  is 
supported  by  the  vast  weight  of  direct  authority.  We 
have  already  noted  a  number  of  the  authorities,''^^  and  we 
shall  soon  note  further  authorities  in  its  support. 

According  to  the  other  position,  there  are  restraints 
which,  although  not  contained  in  the  constitutions,  apply 
to  all  organs  of  government,  there  are  rights  which,  al- 
though not  supported  by  the  constitutions,  no  organ  of 
government  may  violate;  and  those  restraints,  or  those 
rights,  are  to  be  ascertained  by  judicial  action.  That  po- 
sition is  expressed  in  several  ways,  so  that  it  will  be  nec- 
essary for  us  to  observe  the  decisions  and  dicta  under  sev- 
eral heads,  but  there  is  the  common  thought  which  under- 
lies those  several  lines  of  cases  that  there  are  fundamental 
rights,  inalienable  rights,  which  have  an  existence  inde- 
pendent of  any  provision  of  the  constitutions  but  which 
the  courts  may  recognize  and  may  compel  all  organs  of 
government  to  observe.  That  thought  furnishes  the  real 
basis  of  some  of  the  decisions  in  cases  which  arise  under 
the  due  process  provision. 

As  we  have  already  said,  those  two  positions  are  un- 
questionably inconsistent  with  each  other.  And  yet  the 
court  has  given  such  inadequate  attention  to  their  incon- 
sistency that  each  position  has  been  expressed  by  the  Su- 
preme Court  frequently,  and  in  several  cases,  of  which 

'<!  Notes  10,  12,  13  in  Chapter  2,  supra. 


184  DUE  PROCESS  CLAUSES— DISCUSSION. 

Twining  v.  New  Jersey  '^-  may  be  cited  as  an  instance,  the 
two  positions  are  even  stated  side  by  side  in  the  same 
opinion. ^3 

72  (1908)  211  U.  S.  78,  29  Sup.  Ct.  14,  53  L.  ed.  97;  see  page  169, 
supra. 

73  See  the  quotation  from  the  opinion  in  Twining  v.  New  Jersey  on  p. 
193,  infra.  With  it  compare  the  following  quotation  from  the  same  opin- 
ion: "We  prefer  to  rest  our  decision  on  broader  grounds,  and  inquire 
whether  the  exemption  from  self-incrimination  is  of  such  a  nature  that  it 
must  be  included  in  the  conception  of  due  process.  Is  it  a  fundamental 
principle  of  liberty  and  justice  which  inheres  in  the  very  idea  of  free  gov- 
ernment and  is  the  inalienable  right  of  a  citizen  of  such  a  government? 
If  it  is,  and  is  of  a  nature  that  pertains  to  process  of  law,  this  court  has 
declared  it  to  be  essential  to  due  process  of  law:"  211  U.  S.  at  106,  29  Sup. 
Ct.  at  22,  53  L.  ed.  at  109.  "Even  if  the  historical  meaning  of  due  process 
of  law  and  the  decisions  of  this  court  did  not  exclude  the  privilege  from  it, 
it  would  be  going  far  to  rate  it  as  an  immutable  principle  of  justice  which 
is  the  inalienable  possession  of  every  citizen  of  a  free  government.  .  .  . 
It  is  at  best  defended  not  as  an  unchangeable  principle  of  universal  justice, 
but  as  a  law  proved  by  experience  to  be  expedient:"  211  U.  S.  at  113,  29 
Sup.  Ct.  at  25,  53  L.  ed.  at  112.  "Consistently  with  the  requirements  of 
due  process,  no  change  in  ancient  procedure  can  be  made  which  disregards 
those  fundamental  principles,  to  be  ascertained  from  time  to  time  by  judi- 
cial action,  which  have  relation  to  process  of  law  and  protect  the  citizen 
in  his  private  right,  and  guard  him  against  the  arbitrary  action  of  gov- 
ernment. This  idea  has  been  many  times  expressed  in  differing  words  by 
this  court,  and  it  seems  well  to  cite  some  expressions  of  it.  The  words 
due  process  of  law  'were  intended  to  secure  the  individual  from  the  arbitrary 
exercise  of  the  powers  of  government,  unrestrained  by  the  established 
principles  of  private  rights  and  distributive  justice.'  Bank  of  Columbia 
V.  Okely  (1819)  4  Wheat.  235,  244,  4  L.  ed.  559  (approved  in  Hurtado 
V.  California  (1884)  110  U.  S.  516,  527,  4  Sup.  Ct.  Ill,  292,"  117,  28  L.  ed. 
232;  Leeper  v.  Texas  (1891)  139  U.  S.  462,  468,  11  Sup.  Ct.  577,  579,  35 
L.  ed.  225;  Scott  v.  McNeal  (1894)  154  U.  S.  34,  45,  14  Sup.  Ct.  1108, 
1112,  38  L.  ed.  896).  'This  court  has  never  attempted  to  define  with  pre- 
cision the  words  "due  process  of  law."  .  .  .  It  is  sufficient  to  say  that 
there  are  certain  immutable  principles  of  justice  which  inhere  in  the  very 
idea  of  free  government  which  no  member  of  the  Union  may  disregard.' 
Holden  v.  Hardy  (1898)  169  U.  S.  366,  389,  18  Sup.  Ct.  383,  387,  42  L. 
ed.  780.  'The  same  words  refer  to  that  law  of  the  land  in  each  state,  which 
derives  its  authority  from  the  inherent  and  reserved  powers  of  the  state, 
exerted  within  the  limits  of  those  fundamental  principles  of  liberty  and 
justice  which  lie  at  the  base  of  all  our  civil  and  political  institutions.' 
In  re  Kemmler  (1890)  136  U.  S.  436,  448,  10  Sup.  Ct.  930,  934,  34  L.  ed. 
519.     'The  limit  of  the  full  control  which  the  state  has  in  the  proceedings 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  185 

Power  to  declare  governmental  action  unconstitutional. 

93.  The  position  that  there  are  extra-constitutional  re- 
straints derives,  of  course,  no  support  from  those  cases 
which  sustain  the  power  of  the  courts  to  declare  the  inva- 
lidity of  governmental  action  which  is  clearly  unconstitu- 
tional. 

It  is  true  that  the  Federal  Constitution  expressly  for- 
bids the  courts  to  enforce  provisions  of  the  state  laws  and 
the  state  constitutions  which  conflict  with  the  Federal 
Constitution,  and  that  while  there  is  no  provision  of  that 
Constitution  which  necessarily  requires  the  courts  to  de- 
cide for  themselves  whether  federal  legislative  or  execu- 
tive action  is  compatible  with  the  Constitution,'^^   and 

of  its  courts,  both  in  civil  and  criminal  cases,  is  subject  only  to  the  quali- 
fication that  such  procedure  must  not  work  a  denial  of  fundamental  rights 
or  conflict  with  specific  and  applicable  provisions  of  the  Federal  Constitu- 
tion.' West  V.  Louisiana  (1904)  194  U.  S.  258,  263,  24  Sup.  Ct.  650,  652, 
48  L.  ed.  965."  See  211  U.  S.  at  101,  102,  29  Sup.  Ct.  at  20  21,  53  L.  ed. 
at  107. 

74  Article  VI,  clause  2,  which  requires  judges  to  ignore  every  provision 
of  a  state  constitution  or  law  which  is  in  conflict  with  the  supreme  law 
of  the  land,  necessarily  requires  them  to  decide  the  question  of  compati- 
bility before  enforcing  the  state  constitution  or  law.  But  it  does  not  seem 
that  this  clause  either  by  itself  or  in  connection  with  any  other  clause 
necessarily  requires  the  courts  to  pass  an  independent  judgment  upon  the 
compatibility  of  federal  action  to  the  Constitution.  See  Thayer,  John  Mar- 
shall, 61,  64,  65,  98;  book  review  by  Prof.  Thayer  in  7  Harv.  L.  Rev.  380; 
Thayer,  Origin  and  Scope  of  the  American  Doctrine  of  Constitutional  Law, 
7  Harv.  L.  Rev.  137,  note,  reprinted  in  Thayer,  Legal  Essays,  12,  note. 
Compare  Watson  on  the  Constitution,  1168,  1180-1183,  1192;  Coxe,  Judi- 
cial Power  and  Unconstitutional  Legislation,  viii,  67,  272  et  seq.;  Meigs, 
Some  Recent  Attacks  on  the  American  Doctrine  of  Judicial  Power,  40  Am. 
L.  Rev.  660  et  seq.;  Hastings,  Is  It  Usurpation  to  Hold  Void  as  Unconsti- 
tutional Laws?  20  Green  Bag,  453.  Quaere,  does  "in  pursuance  thereof" 
mean  merely  "as  a  consequence  of  the  formation  of  the  new  government" 
and  thus  assist  in  creating  one  obvious  difference  between  laws  and  treaties 
or  does  it  also  create  an  additional  difference  between  laws  and  treaties? 
See  also  preceding  clause  of  Article  VI;  but  compare  Coxe,  ubi  supra,  316, 
as  to  the  development  of  this  clause  in  the  Convention;  and  see  Meigs,  ubi 
supra,   662.     On   the  bearing  of  other  provisions   of  the   Constitution   see 


186  DUE  PROCESS  CLAUSES— DISCUSSION. 

while  for  some  time  there  was  room  for  doubt  whether  in 
the  absence  of  an  express  provision  to  that  effect  in  a  con- 
stitution a  court  might  refuse  to  enforce  legislation  which 
it  considered  clearly  in  conflict  with  the  constitution/^ 
nevertheless,  since  the  decision  in  the  case  of  Marbury  v. 
Madison  '^^  it  has  been  settled  law  that  the  court  may  pass 
an  independent  judgment  upon  the  constitutionality  of 
legislation  and  refuse  to  enforce  legislation  which  it  con- 
siders clearly  unconstitutional:'^'^  the  courts  do  not  regard 

Corwin.  The  Establishment  of  Judicial  Review,  9  Mich.  L.  Rev.  102,  119; 
Corwin,  The  Supreme  Court  and  Unconstitutional  Acts  of  Congress,  4 
Mich.  L.  Rev.  616;  Trickett,  The  Great  Usurpation,  40  Am.  L.  Rev.  356; 
Pennoyer,  The  Income  Tax  Decision,  29  Am.  L.  Rev.  555,  859,  860. 

75  On  the  lack  of  unanimity  on  this  subject  about  the  time  of  the  adop- 
tion of  the  Federal  Constitution  see  Boudin,  Government  by  Judiciary,  26 
Pol.  Sci.  Quar.  238,  244  et  seq.,  257;  Corwin,  The  Supreme  Court  and  Un- 
constitutional Acts  of  Congress,  4  Micb.  L.  Rev.  616  et  seq.;  Corwin,  The 
Establishment  of  Judicial  Review,  9  Mich.  L.  Rev.  102;  Thayer,  John 
Marshall,  63,  66,  72;  Thayer,  The  Origin  and  Scope  of  the  American  Doc- 
trine of  Constitutional  Law,  7  Harv.  L.  Rev.  129,  132-134,  137,  reprinted 
in  Thayer,  Legal  Essays,  1,  5-7,  11;  Willoughby  on  the  Constitution,  5,  6; 
Beard,  The  Supreme  Court  and  the  Constitution,  chap.  2,  p.  113,  note; 
Meigs,  The  Relation  of  the  Judiciary  to  the  Constitution,  19  Am.  L.  Rev. 
175,  178  et  seq.;  Trickett,  The  Great  Usurpation,  40  Am.  L.  Rev.  360,  366; 
Trickett,  Judicial  Dispensation  from  Congressional  Statutes,  41  Am.  L. 
Rev.  65;  Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  chaps. 
20-28;  Meigs,  Some  Recent  Attacks  on  the  American  Doctrine  of  Judicial 
Power,  40  Am.  L.  Rev.  650;  Cooley,  Constitutional  Limitations,  7th  ed., 
229,  note;  Federalist,  No.  78;  Pennoyer,  The  Income  Tax  Decision,  29  Am. 
L.  Rev.  860;  An  Early  Constitutional  Case  in  Massachusetts,  7  Harv.  L. 
Rev.  415;  Elliott,  The  Legislatures  and  the  Courts,  5  Pol.  Sci.  Quar.  231 
et  seq.;  McClain,  Written  and  Unwritten  Constitutions  in  the  United 
States,  6  Col.  L.  Rev.  69,  70;  Clark,  The  Supremacy  of  the  Judiciary,  17 
Harv.  L.  Rev.  1;  and  see  Pierce,  Federal  Usurpation,  200,  201.  On  the 
popular  attitude  toward  the  courts  see  also  Boudin,  Government  by  Judi- 
ciary, 26  Pol.  Sci.  Quar.  238,  248-250,  257,  263,  264;  Thayer,  The  Origin 
and  Scope  of  the  American  Doctrine  of  Constitutional  Law,  7  Harv.  L. 
Rev.  132,  note,  137,  note,  reprinted  in  Thayer,  Legal  Essays,  5,  11;  Bryce, 
American  Commonwealth,  3d  ed.,  I,  501,  451-453;  Roe,  Our  Judicial 
Oligarchy,  28;  U.  S.  Constitution,  Amendments  V-VIII;  and  see  Thayer, 
John  Marshall,  65,  66,  104,  105;  Bill  of  Rights   (1688). 

76  (1803)   1  Cranch,  137,  2  L.  ed.  60. 

77  The  court  in  that  case  asserts  a  general  right  to  refuse  to  enforce 


EXTEA-CONSTITUTIONAL  RESTRAINTS.  187 

as  strictly  binding  upon  them  the  interpretations  which 
Congress  must  necessarily  place  upon  grants  of  and  re- 
strictions upon  legislative  power  before  it  legislates,  as  do 
the  courts  of  continental  EuropeJ^ 

such  legislation,  although  the  decision  might  have  been  based  on  a  nar- 
rower ground.  "As  this  was  a  question  of  the  constitutional  grant  of  its 
©wn  powers,  it  might  have  assumed  the  right  to  ignore  any  attempted 
lessening  or  augmenting  of  them,  without  claiming  the  larger  right  to  in- 
terfere with  the  validity  of  acts  of  Congress  which  did  not  pertain  to  its 
own  jurisdiction:"  Trickett,  The  Great  Usurpation,  40  Am.  L.  Rev.  369. 
See  also  Ibid.  375;  Coxe,  Judicial  Power  and  Unconstitutional  Legislation, 
10,  20,  337;  Thayer,  John  Marshall,  72  et  seq.;  Bordwell,  The  Function  of 
the  Judiciary,  7  Col.  L.  Rev.  at  337;  Corwin,  The  Establishment  of  Judi- 
cial Review,  9  Mich.  L.  Rev.  102,  292;  Beard,  The  Supreme  Court  and  the 
Constitution,  31,  33,  115,  note;  Boudin,  Government  by  Judiciary,  26  Pol. 
Sci.  Quar.  238,  250,  251,  254-256. 

78  On  the  extent  to  which  judges  at  times  regard  previous  decisions  of 
the  court  upon  constitutional  questions  as  binding  upon  them  see  con- 
curring opinion  in  Dorr  v.  United  States  (1904)  195  U.  S.  138,  153,  24  Sup. 
Ct.  808,  814,  49  L.  ed.  128;  New  Y.  C.  &  H.  R.  R.  Co.  v.  Board  of  Chosen 
Freeholders  (1913)  227  U.  S.  248,  261,  33  Sup.  Ct.  269,  271,  57  L.  ed.  499; 
Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  98,  99,  29  Sup.  Ct.  14,  19,  53 
L.  ed.  97;  with  which  consider  Lincoln,  Inaugural  Address  (1861); 
Legal  Tender  Cases  (1870)  12  Wall.  457,  20  L.  ed.  287;  concurring  opin- 
ions in  Butchers'  U.  Co.  v.  Crescent  C.  Co.  (1884)  111  U.  S.  746,  4  Sup. 
Ct.  652,  28  L.  ed.  585 ;  dissenting  opinion  in  Abbott  v.  Beddingfield  ( 1899 ) 
125  N.  C.  256,  280,  34  S,  E.  412,  419;  Collins,  The  Fourteenth  Amend- 
ment and  the  States,  chap.  8;  Boudin,  Government  by  Judiciary,  26  Pol. 
Sci.  Quar.  238,  267;  Goodnow,  Social  Reform  and  the  Constitution,  357; 
Bovonan,  Congress  and  the  Supreme  Court,  25  Pol.  Sci.  Quar.  20;  Shroder, 
The  Doctrine  of  Stare  Decisis — Its  Application  to  Decisions  Involving  Con- 
stitutional Interpretation,  58  Cent.  L.  J.  29;  Machen,  The  Elasticity  of 
the  Constitution,  14  Harv.  L.  Rev.  202,  206,  207,  209;  Chamberlain,  The 
Doctrine  of  Stare  Decisis  as  Applied  to  Decisions  of  Constitutional  Ques- 
tions, 3  Harv.  L.  Rev.  125;  Willoughby  on  the  Constitution,  sec.  28;  Wil- 
loughby,  The  Supreme  Court  of  the  United  States,  76,  77;  and  also  Cou- 
dert.  Certainty  and  Justice,  14  Yale  L.  J.  364;  Whitney,  The  Doctrine  of 
Stare  Decisis,  3  Mich.  L.  Rev.  89,  94  et  seq.;  Ex  parte  Harding  (1911)  219 
U.  S.  363,  378,  31  Sup.  Ct.  324,  329,  55  L.  ed.  252;  Hertz  v.  Woodman 
(1910)  218  U.  S.  205,  212,  213,  30  Sup.  Ct.  621,  622,  623,  54  L.  ed.  1001; 
Chicago,  B.  &  Q.  Ry.  Co.  v.  United  States  (1911)  220  U.  S.  559,  577,  31 
Sup.  Ct.  612,  616,  55  L,  ed.  582;  Ex  parte  Holman  (1908)  79  S.  C.  9,  13, 
60  S.  E.  19,  21;  People  v.  Tompkins  (1906)  186  N.  Y.  413,  79  N.  E.  326, 
12  L.  R.  A.  N.  S.  1081;  Vail  v.  Arizona  (1907)  207  U.  S.  201,  205,  28  Sup. 


188  DUE  PROCESS  CLAUSES— DISCUSSION. 

General  duty  to  enforce  legislation. 

94.  But  the  cases  in  which  the  court  declares  that  it 
may  pass  upon  the  constitutionality  of  the  acts  of  other 
departments  of  government  themselves  recognize  the  duty 
of  the  courts  to  enforce  legislation  unless  that  legislation 
is,  in  the  opinion  of  the  courts,'^ ^  unquestionably  opposed 
to  any  view  which  may  properly  be  taken  of  the  Constitu- 
tion.*^   The  courts  have  no  general  veto  power  over  leg- 

Ct.  107,  108,  52  L.  ed.  169;  dissenting  opinion  in  Eakin  v.  Raub  (1825)  12 
S.  &  R.  (Pa.)  330,  346;  dissenting  opinion  in  Standard  Oil  Co.  v.  United 
States  (1911)  221  U.  S.  1,  31  Sup.  Ct.  502,  55  L.  ed.  619.— As  to  the  for- 
mation of  independent  opinions  on  constitutional  questions  see  also  Mar- 
bury  V.  Madison  (1803)  1  Cranch,  137,  2  L.  ed.  60;  Thayer,  John  Marshall, 
67,  98,  108;  Thayer,  The  Origin  and  Scope  of  the  American  Doctrine  of 
Constitutional  Law,  7  Harv.  L.  Rev.  129,  reprinted  with  additional  notes  in 
Thayer,  Legal  Essays;  Corwin,  The  Supreme  Court  and  Unconstitutional 
Acts  of  Congress,  4  Mich.  L.  Rev.  629,  630;  Trickett,  The  Great  Usurpation, 
40  Am.  L.  Rev.  374;  Pennoyer,  The  Income  Tax  Decision,  29  Am.  L.  Rev. 
557;  Meigs,  The  Relation  of  the  Judiciary  to  the  Constitution,  19  Am.  L. 
Rev.  194-199;  dissenting  opinion  in  Abbott  v.  Beddingfield  (1899)  125  N. 
C.  256,  268,  272,  294,  34  S.  E.  412,  415,  416,  424;  dissenting  opinion  in 
Eakin  v.  Raub  (1825)  12  S.  &  R.  (Pa.)  330,  348,  351,  353,  356;  Goodnow, 
Social  Reform  and  the  Constitution,  334,  335,  337,  340;  Roe,  Our  Judicial 
Oligarchy,  26;  Cooley,  Constitutional  Limitations,  7th  ed.,  228;  Bryce, 
American  Commonwealth,  3d  ed.,  I,  244,  246,  268,  269;  Pierce,  Federal 
Usurpation,  200.  The  argument  in  Clark,  The  Supremacy  of  the  Judiciary, 
17  Harv.  L.  Rev.  17,  18,  is  entirely  unconvincing. 

79  See  Corwin,  The  Supreme  Court  and  Unconstitutional  Acts  of  Con- 
gress, 4  Mich.  L.  Rev.  624;  Trickett,  Judicial  Dispensation  from  Congres- 
sional Statutes,  41  Am.  L.  Rev.  at  86,  87;  dissenting  opinion  in  Eakin  v. 
Raub  (1825)  12  S.  &  R.  (Pa.)  330,  349;  editorial,  The  Flexibility  of  Law, 
96  The  Outlook,  848;  Roe,  Our  Judicial  Oligarchy,  11,  12,  13,  23,  50,  51, 
73  et  seq.,  157,  164  et  seq.,  177.  Compare  Thayer,  The  Origin  and  Scope 
of  the  American  Doctrine  of  Constitutional  Law,  7  Harv.  L.  Rev.  129,  re- 
printed with  additional  notes  in  Thayer,  Legal  Essays;  Laurel  H.  C.  v. 
San  Francisco  (1910)  216  U.  S.  358,  365,  31  Sup.  Ct.  301,  302,  54  L.  ed.  515. 

soi^oxville  V.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  8,  16,  29  Sup.  Ct. 
148,  150,  153,  53  L.  ed.  371;  Allen  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.  (1913) 
230  U.  S.  553,  560,  33  Sup.  Ct.  1030,  1033,  57  L.  ed.  1625;  Missouri  Rate 
Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913)  230  U.  S.  474,  501,  33  Sup. 
Ct.  975,  980,  981,  57  L.  ed.  1571;  Minnesota  Rate  Cases— Simpson  v, 
Shepard   (1913)    230  U.  S.  352,  452,  453,  33  Sup.  Ct.   729,  762,  57  L.  ed. 


i 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  189 

islation.^^  The  Convention  of  1787  repeatedly  and  em- 
phatically refused  to  place  in  the  Constitution  such  a 
grant  of  power  to  the  courts,^-  and  it  is  inconceivable  that 
those  who  adopted  the  Constitution  granted  a  similar 
power  by  implication. 

Passing  upon  the  wisdom  or  justice  of  governmental  ac- 
tion. 

95.  The  question  of  the  propriety  of  legislation  is  not 

1511;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S.  739,  754,  19 
Sup.  Ct.  804,  810,  43  L.  ed.  1154;  Henderson  B.  Co.  v.  Henderson  City 
(1899)  173  U.  S.  592,  615,  19  Sup.  Ct.  553,  562,  43  L.  ed.  823;  Sinking 
Fund  Cases  (1878)  99  U.  S.  700,  718,  25  L.  ed.  496;  Legal  Tender  Cases 
(1872)  12  Wall.  457,  531,  20  L.  ed.  287;  language  of  Washington,  J.,  in 
Ogden  V.  Saunders  (1827)  12  Wheat.  213,  270,  6  L.  ed.  606;  State  v.  At- 
lantic C.  L.  R.  Co.  (1912)  64  Fla.,  60  So.  186;  Thayer,  The  Origin  and 
Scope  of  the  American  Doctrine  of  Constitutional  Law,  7  Harv.  L.  Rev. 
138  et  seq.,  reprinted  in  Thayer,  Legal  Essays;  Thayer,  John  Marshall,  106, 
108,  110;  Patterson,  The  United  States  and  the  States  Under  the  Consti- 
tution, 2d  ed.,  p.  232;  Willoughby  on  the  Constitution,  p.  20;  Bordwell, 
The  Function  of  the  Judiciary,  7  Col.  L.  Rev.  337. — On  the  extent  to  which 
this  principle  is  observed  by  the  courts,  see  Seager,  The  Attitude  of  Ameri- 
can Courts  Towards  Restrictive  Labor  Laws,  19  Pol.  Sci.  Quar.  589;  Hand, 
Due  Process  of  Law  and  the  Eight  Hour  Day,  21  Harv.  L.  Rev.  495,  499; 
Collins,  The  Fourteenth  Amendment  and  the  States,  168-170;  Boudin,  Gov- 
ernment by  Judiciary,  26  Pol.  Sci.  Quar.  238;  Dodd,  The  Growth  of  Judi- 
cial Power,  24  Pol.  Sci.  Quar.  193;  Roe,  Our  Judicial  Oligarchy,  30;  White, 
Government  Control  of  Transportation  Charges,  38  Am.  L.  Reg.  N.  S.  at 
153,  note  3;  Martin,  Recent  Federal  Court  Decisions  Affecting  State  Laws 
Regulating  Freight  and  Passenger  Rates,  21  Yale  L.  J.  117;  and  note  73 
in  Chapter  3,  supra. 

81  The  opinion  in  Marbury  v.  Madison  (1803)  1  Cranch,  137,  2  L.  ed. 
60,  so  assumes.  See  also  Muskrat  v.  United  States  (1911)  219  U.  S.  346, 
357,  31  Sup.  Ct.  250,  254,  55  L.  ed.  246;  Elliot's  Debates,  V,  151,  344,  347; 
Thayer,  The  Origin  and  Scope  of  the  American  Doctrine  of  Constitutional 
Law,  7  Harv.  L.  Rev.  129,  136  et  seq.,  reprinted  in  Thayer,  Legal  Essays, 
1,  11  et  seq.;  Tliayer,  John  Marshall,  chap.  5;  discussion  in  Dorman  v. 
State  (1859)  34  Ala.  216,  232  et  seq.;  McMurtrie,  The  Jurisdiction  to  De- 
clare Void  Acts  of  Legislation,  32  Am.  L.  Reg.  N.  S.  1094,  1095,  1103; 
McMurtrie,  A  Last  Word  on  Constitutional  Construction,  33  Am.  L.  Reg. 
N.  S.  506;  Boudin,  Government  by  Judiciary,  26  Pol.  Sci.  Quar.  238,  248; 
latter  part  of  note  80,  supra;  notes  12,  13,  supra. 

82  See  note  81,  supra. 


190  DUE  PROCESS  CLAUSES— DISCUSSION. 

judicial  in  its  nature.  That  question  has  been  entrusted 
to  other  departments  of  government.  The  Supreme  Court 
has  declared  repeatedly  that  it  has  no  right  to  inquire  into 
the  wisdom  or  justice  of  acts  by  other  organs  of  the  fed- 
eral government  or  by  the  states  or  their  organs  of  gov- 
ernment ;  ^^  and  some  of  those  statements  have  been  made 

83  See  the  especially  strong  language  used  in  McCray  v.  United  States 
(1904)  195  U.  S.  27,  54-61,  24  Sup.  Ct.  769,  776-778,  49  L.  ed.  78,  in  the 
many  opinions  there  quoted,  and  in  Atkin  v.  Kansas  (1903)  191  U.  S.  207, 
223,  24  Sup.  Ct.  124,  128,  48  L.  ed.  148;  and  also  Noble  State  Bank  v. 
Haskell  (1911)  219  U.  S.  575,  580,  31  Sup.  Ct.  299,  300,  55  L.  ed.  341; 
Oceanic  N.  Co.  v.  Stranahan  (1909)  214  U.  S.  320,  340,  29  Sup.  Ct.  671, 
676,  53  L.  ed.  1013;  United  States  v.  Delaware  &  H.  Co.  ( 1909)  213  U.  S.  366, 
405,  29  Sup.  Ct.  527,  535,  53  L.  ed.  836;  Twining  v.  New  Jersey  (1908) 
211  U.  S.  78,  106,  29  Sup.  Ct.  14,  22,  53  L.  ed.  97;  Hunter  v.  Pittsburgh 
(1907)  207  U.  S.  161,  176,  28  Sup.  Ct.  40,  45,  52  L.  ed.  151;  Lottery  Case- 
Champion  V.  Ames  (1903)  188  U.  S.  321,  363,  23  Sup.  Ct.  321,  329,  330, 
47  L.  ed.  492;  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503, 
512,  22  Sup.  Ct.  95,  99,  46  L.  ed.  298;  New  Y.  &  N.  E.  R.  Co.  v.  Bristol 
(1894)  151  U.  S.  556,  570,  14  Sup.  Ct.  437,  441,  38  L.  ed.  269;  Powell  v. 
Pennsylvania  (1888)  127  U.  S.  678,  686,  8  Sup.  Ct.  992,  1257,  996,  32  L. 
ed.  253;  Purity  E.  &  T.  Co.  v.  Lynch  (1912)  226  U.  S.  192,  201,  33  Sup.  Ct. 
44,  46,  57  L.  ed.  184;  Red  "C"  0.  M.  Co.  v.  Board  of  Agriculture  (1912)  222 
U.  S.  380,  394,  395,  32  Sup.  Ct.  152,  156,  56  L.  ed.  240;  Flint  v.  Stone 
Tracy  Co.  (1911)  220  U.  S.  107,  153,  154,  31  Sup.  Ct.  342,  350,  55  L.  ed. 
389;  Brodnax  v.  Missouri  (1911)  219  U.  S.  285,  293,  31  Sup.  Ct.  238,  240, 
55  L.  ed.  219;  Shevlin-Carpenter  Co.  v.  Minnesota  (1910)  218  U.  S.  57,  70, 

30  Sup.  Ct.  663,  667,  54  L.  ed.  930;  District  of  Columbia  v.  Brooke  (1909) 
214  U.  S.  138,  150,  29  Sup.  Ct.  560,  563,  53  L.  ed.  941;  Railroad  Comn.  of 
Louisiana  v.  Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414,  420,  29  Sup.  Ct. 
357,  360,  53  L.  ed.  577;  Waters-Pierce  Oil  Co.  v.  Deselms  (1909)  212  U.  S. 
159,  174,  29  Sup.  Ct.  270,  274,  53  L.  ed.  453;  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  Taylor  (1908)  210  U.  S.  281,  295,  28  Sup.  Ct.  616,  621,  52  L.  ed.  1061; 
Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  82,  28  Sup.  Ct.  428, 
436,  52  L.  ed.  681;  Sauer  v.  New  York  (1907)  206  U.  S.  536,  547,  27  Sup. 
Ct.  686,  689,  51  L.  ed.  1176;  Hennington  v.  Georgia  (1896)  163  U.  S.  299, 
304,  16  Sup.  Ct.  1086,  1088,  41  L.  ed.  166;  Metropolis  T.  Co.  v.  Chicago 
(1913)  228  U.  S.  61,  69,  33  Sup.  Ct.  441,  443,  57  L.  ed.  730;  Chicago,  B. 
&  Q.  R.  Co.  V.  McGuire  (1911)  219  U.  S.  549,  569,  31  Sup.  Ct.  259,  263, 
55  L.  ed.  328;  Louisville  &  N.  R.  Co.  v.  Mottley  (1911)  219  U.  S.  467,  474, 

31  Sup.  Ct.  265,  267,  55  L.  ed.  297;  Ling  Su  Fan  v.  United  States  (1910) 
218  U.  S.  302,  311,  31  Sup.  Ct.  21,  23,  54  L.  ed.  1049;  Grenada  L.  Co.  v. 
Mississippi  (1910)  217  U.  S.  433,  441,  30  Sup.  Ct.  535,  539,  54  L.  ed.  826; 
Weems  v.  United  States   (1910)   217  U.  S.  349,  379,  30  Sup.  Ct.  544,  554, 


I 


EXTEA-CONSTITUTIONAL  RESTRAINTS.  191 

in  language  which  was  decidedly  vigorous.  And,  indeed, 
even  if  there  were  no  constitutional  objection  to  the  mak- 

54  L.  ed.  793;  Southwestern  Oil  Co.  v.  Texas  (1910)  217  U.  S.  114,  127,  30 
Sup.  Ct.  496,  501,  54  L.  ed.  688;  Interstate  Com.  Comn.  v.  Illinois  C.  R.  Co. 
(1910)  215  U.  S.  452,  470,  30  Sup.  Ct.  155,  160,  54  L.  ed.  280;  McLean  v. 
Arkansas  (1909)  211  U.  S.  539,  547,  548,  29  Sup.  Ct.  206,  208,  53  L.  ed. 
315;  Employers'  Liability  Cases — Howard  v.  Illinois  C.  R.  Co.  (1908)  207 
U.  S.  463,  492,  28  Sup.  Ct.  141,  143,  52  L.  ed.  297;  Heath  &  M.  M.  Co.  v. 
Worst  (1907)  207  U.  S.  338,  357,  28  Sup.  Ct.  114,  120,  52  L.  ed.  236; 
Whitfield  V.  Aetna  L.  I.  Co.  (1907)  205  U.  S.  489,  495,  27  Sup.  Ct.  578,  579, 
51  L.  ed.  894;  Patterson  v.  Colorado  (1907)  205  U.  S.  454,  461,  27 
Sup.  Ct.  556,  557,  51  L.  ed.  879;  St.  Mary's  F.-A.  P.  Co.  v.  West  Virginia 
(1906)  203  U.  S.  183,  192,  27  Sup.  Ct.  132,  135,  51  L.  ed.  144;  Hooker  v. 
Los  Angeles  (1903)  188  U.  S.  314,  320,  23  Sup.  Ct.  395,  397,  47  L.  ed.  487; 
Patton  V.  Brady  (1902)  184  U.  S.  60S,  623,  22  Sup.  Ct.  493,  498,  46  L.  ed. 
713;  L'Hote  v.  New  Orleans  (1900)  177  U.  S.  587,  597,  20  Sup.  Ct.  791, 
792,  44  L.  ed.  899;  Ohio  Oil  Co.  v.  Indiana  (1900)  177  U.  S.  190,  211,  20 
Sup.  Ct.  576,  585,  44  L.  ed.  429;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins 
(1900)  176  U.  S.  167,  173,  20  Sup.  Ct.  336,  338,  44  L.  ed.  417;  Fallbrook 
Irr.  Dist.  V.  Bradley  (1896)  164  U.  S.  112,  157,  17  Sup.  Ct.  56,  62,  41  L.  ed. 
369;  County  of  Mobile  v.  Kimball  (1880)  102  U.  S.  691,  704,  26  L.  ed.  238; 
Springer  v.  United  States  (1880)  102  U.  S.  586,  594,  26  L.  ed.  253;  Ex 
parte  Siebold  (1879)  100  U.  8.  371,  393,  25  L.  ed.  717;  Legal  Tender  Cases 
(1872)  12  Wall.  457,  552,  20  L.  ed.  287;  discussion  in  the  case  of  Dorman 
V.  State  (1859)  34  Ala.  216,  235;  West  Virginia  v.  Dent  (1884)  25  W.  Va. 
1,  21,  22;  Boudin,  Government  by  Judiciary,  26  Pol.  Sci.  Quar.  238,  262; 
Sedgwick,  Construction  of  Statutory  and  Constitutional  Law,  2d  ed.,  154, 
183  et  seq.;  21  Harv.  L.  Rev.  495;  4  Harv.  L.  Rev.  386;  32  Am.  L.  Reg.  N. 
S.  5,  596;  33  Am.  L.  Reg.  N.  S.  512:  McMurtrie,  Observations  on  Mr. 
George  Bancroft's  Plea  for  the  Constitution,  pp.  5,  7,  26;  Bryce,  The 
American  Commonwealth,  3d  ed...  I,  253;  and  see  Willoughby,  The  Nature 
of  the  State,  77,  85;  Blackstone,  Commentaries,  I,  *91;  and  notes  76  in 
Chapter  3,  supra,  and  119,  infra.  Compare  citations  at  end  of  note  80,  supra, 
on  the  extent  to  which  this  principle  is  observed  by  the  courts;  Interstate 
Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  547,  548,  32  Sup.  Ct. 
108,  111,  56  L.  ed.  308;  Interstate  Com.  Comn.  v.  Illinois  C.  R.  Co.  and 
McLean  v.  Arkansas,  supra;  Michigan  C.  R.  Co.  v.  Powers  (1906)  201  U. 
S.  245,  300,  26  Sup.  Ct.  459,  465,  50  L.  ed.  744;  United  States  v.  Joint  T. 
Assn.  (1898)  171  U.  S.  505,  571,  19  Sup.  Ct.  25,  32,  43  L.  ed.  259;  note  73 
in  Chapter  3,  supra;  notes  111-114,  117,  118,  infra;  and  opinion  of  Chase, 
J.,  in  Calder  v.  Bull  (1798)  3  Dall.  386,  388,  1  L.  ed.  648.  Justice  Chase, 
it  will  be  remembered,  was  a  justice  who  left  the  court  without  a  quorum 
while  he  made  political  speeches,  who  even  made  such  a  speech  to  a  grand 
jury,  and  whose  conduct  in  the  Alien  and  Sedition  case  has  been  severely 
criticized. 


192  DUE  PKOCESS  CLAUSES— DISCUSSION. 

ing  of  such  an  inquiry  by  the  court,  the  inconvenience  of 
leaving  the  validit}^  of  a  law  in  uncertainty  for  years  and 
of  allowing  a  court  upon  so  indefinite  a  ground  ^^  to  decide 
retroactively  long  after  its  enactment  that  the  law  was 
void  ab  initio  would  constitute  a  very  grave  practical  ob- 
jection to  such  a  course.^^ 

The  Ninth  Amendment. 

96.  Moreover,  the  declaration  of  the  Ninth  Amendment 
that  '^The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people"  merely  provides  against  an  er- 
roneous inference  from  other  parts  of  the  Constitution.^^ 
It  does  not  authorize  courts  to  refuse  to  enforce  legisla- 
tion upon  the  ground  that  CongTess  has  violated  rights 
unnamed  in  the  Constitution.  And  it  has  no  bearing 
whatever  upon  state  legislation. 

84  See  McMurtrie,  The  Jurisdiction  to  Declare  Void  Acts  of  Legislation, 
32  Am.  L.  Reg.  N.  S.  1108;  with  which  compare  Pollock,  The  Law  of 
Reason,  2  Mich.  L.  Rev.  159,  173;  Pollock,  The  Expansion  of  the  Common 
Law,  4  Col.  L.  Rev.  171,  187. 

85  See  McMurtrie,  A  Last  Word  on  Constitutional  Construction,  33  Am. 
L.  Reg.  N.  S.  511,  512;  McMurtrie,  Note  on  Constitutional  Law,  32  Am.  L. 
Reg.  N.  S.  595;  Trickett,  The  Great  Usurpation,  40  Am.  L.  Rev.  362-365, 
376;  Norton  v.  Shelby  County  (1886)  118  U.  S.  425,  442,  6  Sup.  Ct.  1121, 
1125,  30  L.  ed.  178;  Smalley,  Railroad  Rate  Control  (Publications  of  the 
American  Economic  Assn.)  114-117;  Knoxville  v.  Knoxville  W.  Co.  (1909) 
212  U.  S.  1,  16,  29  Sup.  Ct.  148,  153,  53  L.  ed.  371;  Collins,  The  Fourteenth 
Amendment  and  the  States,  132,  136,  154,  158;  Hadley,  The  Eleventh 
Amendment,  66  Cent.  L.  J.  71,  76;  Ransom,  Majority  Rule  and  the  Judi- 
ciary, 62;  Cooley,  Constitutional  Limitations,  7th  ed.,  259;  Bryce,  American 
Commonwealth,  3d  ed.,  I,  250,  264;  and  also  Thayer,  John  Marshall,  102  et 
seq.,  109.    Compare  McMurtrie,  ubi  supra,  33  Am.  L.  Reg.  N.  S.  507. 

86  See  Annals  of  Congress,  I,  456;  Thorpe,  Constitutional  History  of  the 
United  States,  II,  218;  The  Federalist,  No.  84;  Story  on  the  Constitution, 
sec.  448. 


EXTRA-CONSTITUTIONAL  RESTRAIN'J'S.  193 

Rule  stated  in  Twining  v.  New  Jersey. 

97.  But  it  is  not  necessary  for  us  to  go  into  a  further 
consideration  of  the  authorities  in  support  of  this  position. 
The  court  unquestionably  declared  correctly  when  it  said 
in  Twining  v.  New  Jersey,^'^  "It  must  not  be  forgotten 
that  in  a  free  representative  government  nothing  is  more 
fundamental  than  the  right  of  the  people  through  their 
appointed  servants  to  govern  themselves  in  accordance 
with  their  own  will,  except  so  far  as  they  have  restrained 
themselves  by  constitutional  limits  specifically  establish- 
ed, and  that  in  our  peculiar  dual  form  of  government 
nothing  is  more  fundamental  than  the  full  power  of  the 
state  to  order  its  own  affairs  and  govern  its  own  people, 
except  so  far  as  the  Federal  Constitution  expressly  or  by 
fair  implication  has  withdrawn  that  power.  The  power 
of  the  people  of  the  states  to  make  and  alter  their  laws  at 
pleasure  is  the  greatest  security  for  liberty  and  justice, 
this  court  has  said  in  Hurtado  v.  California.^  ^  We  are 
not  invested  with  the  jurisdiction  to  pass  upon  the  expe- 
diency, wisdom  or  justice  of  the  laws  of  the  states  as  de- 
clared by  their  courts,  but  only  to  determine  their  con- 
formity with  the  Federal  Constitution  and  the  paramount 
laws  enacted  pursuant  to  it.  Under  the  guise  of  interpret- 
ing the  Constitution  we  must  take  care  that  we  do  not  im- 
port into  the  discussion  our  own  personal  views  of  what 
would  be  wise,  just  and  fitting  rules  of  government  to  be 
adopted  by  a  free  people  and  confound  them  with  consti- 
tutional limitations.  The  question  before  us  is  the  mean- 
ing of  a  constitutional  provision  which  forbids  the  states 
to  deny  to  any  person  due  process  of  law.    In  the  decision 

87  (1908)  211  U.  S.  78,  106,  107,  29  Sup.  Ct.  14,  22,  23,  53  L.  ed.  97. 
Compare  expressions  in  that  opinion  quoted  in  note  73,  supra. 

88  (1884)  110  U.  S.  516,  535,  4  Sup.  Ct.  Ill,  292,  121,  28  L.  ed.  232. 
See  also  pp.  157,  158,  supra. 

13 


194  DUE  PROCESS  CLAUSES— DISCUSSION. 

of  this  question  we  have  authority  to  take  into  account 
only  those  fundamental  rights  which  are  expressed  in 
that  provision. ' ' 

Extra-constitutional  restraints  and  rights. 

98.  And  yet  in  a  number  of  other  cases,  as  we  have  al- 
ready pointed  out,^^  there  are  expressions  in  favor  of  the 
recognition  of  extra-constitutional  restraints  and  rights. 
It  is  quite  probable  that  there  is  no  case  in  which  that  po- 
sition constitutes  the  only  avowed  ground  for  the  decis- 
ion.^*^  Indeed,  the  Supreme  Court  itself  has  said  recently 
that  rarely  if  ever  has  it  been  unable  to  find  some  remedy 
consistent  with  the  law  for  acts  which  violated  natural 
justice.^^     Yet  the  fact  remains  that  in  a  number  of  in- 

89  See  p.  183,  supra. 

90  "It  may  be  remarked  here  that  the  doctrine  of  declaring  legislative  acts 
void  as  being  contrary  to  the  constitution,  was  probably  helped  into  ex- 
istence by  a  theory  which  found  some  favor  among  our  ancestors  at  the 
time  of  the  Revolution,  that  courts  might  disregard  such  acts  if  they  were 
contrary  to  the  fundamental  maxims  of  morality,  or,  as  it  was  phrased,  to 
the  laws  of  nature.  Such  a  doctrine  was  thought  to  have  been  asserted  by 
English  writers,  and  even  by  judges  at  times  but  was  never  acted  on. 
It  has  been  repeated  here,  as  a  matter  of  speculation,  by  our  earlier  judges, 
and  occasionally  by  later  ones;  but  in  no  case  within  my  knowledge  has  it 
ever  been  enforced  where  it  was  the  single  and  necessary  ground  of  the 
decision,  nor  can  it  be,  unless  as  a  revolutionary  measure:"  Tliayer,  The 
Origin  and  Scope  of  the  American  Doctrine  of  Constitutional  Law,  7  Harv. 
L.  Rev.  129,  133,  reprinted  in  Thayer,  Legal  Essays,  1,  6,  7.  See  also  notes 
to  the  above  passage. 

91  "Suffice  it  to  say,  that  the  courts  have  rarely,  if  ever,  felt  themselves 
so  restrained  by  technical  rules  that  they  could  not  find  some  remedy,  con- 
sistent with  the  law,  for  acts,  whether  done  by  government  or  by  indi- 
vidual persons,  that  violated  natural  justice  or  were  hostile  to  the  funda- 
mental principles  devised  for  the  protection  of  the  essential  rights  of  prop- 
erty:" Monongahela  B.  Co.  v.  United  States  (1910)  216  U.  S.  177,  195,  30 
Sup.  Ct.  356,  361,  54  L.  ed.  435.  See  also  Corwin,  The  Supreme  Court  and 
the  Fourteenth  Amendment,  7  Mich.  L.  Rev.  643,  where  it  is  said,  "Given  a 
sufficient  hardihood  of  purpose  at  the  rack  of  exegesis,  and  any  document, 
no  matter  what  its  fortitude,  will  eventually  give  forth  the  meaning  re- 
quired of  it;"  and  the  language  of  Harlan,  J.,  when  orally  announcing  his 


EXTEA-CONSTITUTIONAL  RESTRAINTS.  195 

stances  the  court  speaks  of  restraints  and  rights  which,  in 
view  of  the  history  of  some  of  the  terms  used  and  the  con- 
ceptions involved  in  others  of  the  terms,  are  clearly  con- 
sidered as  existing  regardless  of  constitutional  provisions. 
And  while  the  court  upon  some  of  those  occasions  speaks 
of  restraints  and  rights  which  it  designates  in  those  terms 
as  supported  by  the  constitutions,  it  does  not  by  the  use 
of  such  language  show  that  consistency  exists  between  the 
basic  idea  that  there  are  extra-constitutional  restraints 
and  rights  which  may  be  enforced  against  all  organs  of 
government  and  the  other  basic  idea  that  some  organs  of 
government  have  all  governmental  powers  except  those 
which  are  denied  to  them  by  the  constitutions. 

Inalienable  rights. 

99.  There  are  a  few  statements  in  approval  of  the  the- 
ory of  inalienable  rights  in  opinions  which  are  not  very 
recent;  ^^  and  even  in  some  of  the  more  recent  cases  there 

dissent  from  the  decision  in  Standard  Oil  Co.  v.  United  States  (1911) 
printed  in  68  Legal  Intelligencer,  p.  318,  col.  4.  And  see  24  Harv.  L.  Rev. 
at  470,  471. 

92  In  Cummings  v.  Missouri  (1866)  4  Wall.  277,  18  L.  ed.  356,  which 
was  decided  before  the  adoption  of  the  Fourteenth  Amendment,  and  in 
which  an  ex  post  facto  law  was  declared  unconstitutional,  the  court  said, 
speaking  by  Justice  Field,  that  the  "theory  upon  which  our  political  insti- 
tutions rest  is,  that  all  men  have  certain  inalienable  rights:"  4  Wall,  at 
321,  18  L.  ed.  at  362.  But  in  the  Slaughter  House  Cases  (1872)  16  Wall. 
36,  21  L.  ed.  394,  which  were  decided  after  the  adoption  of  the  Fourteenth 
Amendment,  while  Justice  Field  reiterated  his  views  corcerning  the  exist- 
ence of  inalienable  rights  in  a  dissenting  opinion  in  which  three  other  jus- 
tices concurred  (16  Wall,  at  96,  105,  110,  111,  21  L.  ed.  at  415,  418,  419) 
those  views  were  rejected  by  a  majority  of  the  court;  and  in  Butchers'  U. 
Co.  v.  Crescent  C.  Co.  (1884)  111  U.  S.  746,  4  Sup.  Ct.  652,  28  L.  ed.  585, 
while  similar  views  were  expressed  (111  U.  S.  at  756,  757,  762,  4  Sup.  Ct. 
at  657,  660,  28  L.  ed.  at  591,  588,  589)  they  were  expressed  only  in  opin- 
ions which  concurred  in  the  judgment  upon  grounds  which  did  not  appeal 
to  a  majority  of  the  court  and  the  acceptance  of  which  would  have  meant 
the  overruling  of  the  Slaughter  House  decision.  A  statement  from  one  of 
those   "concurring"   opinions   in   the   Butchers'   Union   case   was,   however, 


196  DUE  PROCESS  CLAUSES— DISCUSSION. 

are  casual  dicta  in  which  it  is  assumed  that  there  are  in- 
alienable rights.^^ 

Natural  justice,  natural  rights. 

100.  There  are  some  mild  expressions  in  several  other 
opinions  in  favor  of  judicial  recognition  of  natural  jus- 
tice or  natural  rights  as  possessing  authority  superior  to 
legislation,^^  although  in  still  other  opinions  such  superi- 
ority is  denied.^^ 

referred  to  with  approval  in  the  opinion  of  the  court  in  Allgeyer  v.  Louis- 
iana (1897)  165  U.  S.  578,  589,  17  Sup.  Ct.  427,  431,  41  L.  ed.  832,  a  case 
which  we  shall  consider  later — see  pp.  245-248,  infra.  And  see  Corwin,  The 
Doctrine  of  Due  Process  of  Law  Before  the  Civil  War,  24  Harv.  L.  Rev. 
366,  375;  with  which  compare  Satterlee  v.  Matthewson  (1829)  2  Pet.  380, 
413,  414,  7  L.  ed.  458, 

93Frisbie  v.  United  States  (1885)  157  U.  S.  160,  165,  15  Sup.  Ct.  586, 
588,  39  L.  ed.  657;  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  11,  29,  25 
Sup.  Ct.  358,  362,  49  L.  ed.  643;  Twining  v.  New  Jersey  (1908)  211  U.  S. 
78,  106,  110,  113,  29  Sup.  Ct.  14,  22,  24,  25,  53  L.  ed.  97.  See  also  211  U. 
S.  at  101,  102,  29  Sup.  Ct.  at  20,  21,  53  L.  ed.  at  107,  quoted  in  note  73,  on 
pp.  184,  185,  supra.     Compare  discussion  on  pp.  202,  203,  infra. 

94  Dicta  in  Holden  v.  Hardy  (1898)  169  U.  S.  366,  390,  18  Sup.  Ct. 
383,  387,  42  L.  ed.  780;  Turpin  v.  Lemon  (1902)  187  U.  S.  51,  57,  60,  23 
Sup.  Ct.  20,  23,  24,  47  L.  ed.  70;  Arndt  v.  Griggs  (1890)  134  U.  S.  316, 
321,  10  Sup.  Ct.  557,  559,  33  L.  ed.  918,  of  which  the  passage  last  cited  may 
possibly  express  the  thought,  on  which  we  shall  not  now  comment,  that 
specific  provisions  of  the  Constitution  will  be  enforced  literally  but  that 
a  provision  which  the  court  considers  less  definite  will  be  applied  only 
against  governmental  actions  which  the  court  considers  to  be  against 
natural  justice.  See  also  Monongahela  B.  Co.  v.  United  States  (1910)  216 
U.  S.  177,  195,  30  Sup.  Ct.  356,  361,  54  L.  ed.  435;  Chicago,  B.  &  Q.  R.  Co. 
V.  Chicago  (1897)  166  U.  S.  226,  236,  17  Sup.  Ct.  581,  584,  41  L.  ed.  979; 
Hurtado  v.  California  (1884)  110  U.  S.  516,  535,  4  Sup.  Ct.  Ill,  292,  120, 
28  L.  ed.  232;  License  Tax  Cases  (1866)  5  Wall.  462,  469,  18  L.  ed.  497; 
Terrett  v.  Taylor  (1815)  9  Cranch,  43,  52,  3  L.  ed.  650;  language  of  Chase, 
J.,  in  Cakler  v.  Bull  (1798)  3  Dall.  386,  388,  1  L.  ed.  648;  dissenting 
opinion  in  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200  U.  S.  561,  598, 
599,  26  Sup.  Ct.  341,  352,  50  L.  ed.  596;  dissenting  opinion  in  Slaughter 
House  Cases  (1872)  16  Wall.  36,  96,  21  L.  ed.  394;  "concurring"  opinion 
in  Butchers'  U.  Co.  v.  Crescent  C.  Co.  (1884)  111  U.  S,  746,  754,  4  Sup. 
Ct.  652,  659,  28  L.  ed.  585. 

95 New  Y.  &  N.  E.  R.  Co.  v.  Bristol  (1894)  151  U.  S.  556,  570,  14  Sup. 
Ct.  437,  441,  38  L.  ed.  269.     And  see  language  of  Iredell,  J.,  in  Calder  v. 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  197 

Fundamental  rights. 

101.  In  cases  which  arose  after  the  Spanish  war  there 
are  suggestions  that,  while  some  of  the  provisions  of  the 
Federal  Constitution  are  not  in  force  in  territory  which 
is  subject  to  the  federal  government  but  which  has  not 
been  "incorporated"  into  the  United  States,  yet  in  such 
territory  even  ' '  where  there  is  no  direct  command  of  the 
Constitution  which  applies,  there  may  nevertheless  be  re- 
strictions of  so  fundamental  a  nature  that  they  cannot  be 
transgressed,  although  not  expressed  in  so  many  words 
in  the  Constitution."^^ 

And  in  other  cases  which  arose  in  territory  which  is 

Bull  (1798)  3  Dall.  386,  398,  399,  1  L.  ed.  648;  Elliot's  Debates,  V,  344 
et  seq. ;  dissenting  opinion  in  Loan  Assn.  v.  Topeka  (1875)  20  Wall.  655, 
668,  22  L.  ed.  455;  language  of  author  of  opinion  in  Loan  Assn.  v.  Topeka 
in  dissenting  opinion  in  Hepburn  v.  Griswold  (1869)  8  Wall.  603,  638,  19 
L.  ed.  513  (the  decision  in  Hepburn  v.  Griswold  from  which  he  dissented 
was  overruled  in  the  Legal  Tender  Cases  (1870)  12  Wall.  457,  20  L.  ed. 
287,  and  the  decision  which  he  announced  in  Loan  Assn.  v.  Topeka  was 
somewhat  explained  by  him  in  Davidson  v.  New  Orleans  (1877)  96  U.  S. 
97,  105,  24  L.  ed.  616)  ;  quotation  in  note  90,  supra;  Hedderich  v.  State 
(1885)  101  Ind.  564,  566,  1  N.  E.  47;  Dorman  v.  State  (1859)  34  Ala. 
216,  232  et  seq.;  Black,  Constitutional  Law,  3d  ed.  p.  72;  Dec.  Dig.,  Const. 
Law,  sec.  39 ;  Bryce,  American  Commonwealth,  3d  ed.,  I,  447 ;  Patterson, 
The  United  States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  10; 
Sutherland,  Statutory  Construction,  2d  ed.,  sec.  85;  Cooley,  Constitutional 
Limitations,  7th  ed.,  233;  Sedgwick,  Construction  of  Statutory  and  Con- 
stitutional Law,  2d  ed.,  154-159;  McMurtrie,  The  Jurisdiction  to  Declare 
Void  Acts  of  Legislation,  32  Am.  L.  Reg.  N.  S.  1108;  McMurtrie,  A  Last 
Word  on  Constitutional  Construction,  33  Am.  L.  Reg.  N.  S.  512. — On  the 
theory  of  natural  justice  see  also  note  103,  infra. 

96  "Whilst,  therefore,  there  is  no  express  or  implied  limitation  on  Con- 
gress in  exercising  its  power  to  create  local  governments  for  any  and  all 
of  the  territories,  by  which  that  body  is  restrained  from  the  widest  lati- 
tude of  discretion,  it  does  not  follow  that  there  may  not  be  inherent,  though 
unexpressed,  principles  which  are  the  basis  of  all  free  government  which 
cannot  be  with  impunity  transcended.  But  tliis  does  not  suggest  that  every 
express  limitation  of  the  Constitution  which  is  applicable  has  not  force, 
but  only  signifies  that  even  in  cases  where  there  is  no  direct  command  of 
the  Constitution  which  applies,  there  may  nevertheless  be  restrictions  of 
so  fundamental  a  nature  that  they  cannot  be  transgressed,  although  not 


198  DUE  PROCESS  CLAUSES— DISCUSSION. 

unquestionably  part  of  the  United  States  there  are  ex- 
pressions of  which  the  precise  meaning  is  doubtful  but 
which  may  indicate  the  position  that  "fundamental 
rights"  are  as  such  inviolable;  ^^  although  from  the  Ian- 
expressed  in  so  many  words  in  the  Constitution:"  from  separate  opinion 
in  Downes  v.  Bidwell  (1901)  182  U.  S.  244,  290,  291,  21  Sup.  Ct.  770,  788, 
45  L.  ed.  1088,  by  White,  J.,  in  which  Shiras  and  McKenna,  JJ.,  concurred 
and  with  which  Gray,  J.,  agreed  in  substance.  The  above  language  was 
quoted  with  apparent  approval  by  Day,  J.,  in  the  opinion  of  the  court  in 
Dorr  V.  United  States  (1904)  195  U.  S.  138,  147,  24  Sup.  Ct.  808,  812,  49 
L.  ed.  128.  The  statement  of  Bradley,  J.,  in  the  Mormon  Church  Case — 
Late  Corporation  of  the  Church  of  Jesus  Christ  v.  United  States  (1890) 
136  U.  S.  1,  44,  10  Sup.  Ct.  792,  803,  34  L.  ed.  478,  that  "Doubtless  Con- 
gress, in  legislating  for  the  Territories  would  be  subject  to  those  funda- 
mental limitations  in  favor  of  personal  rights  which  are  formulated  in  the 
Constitution  and  its  Amendments;  but  these  limitations  would  exist  rather 
by  inference  and  the  general  spirit  of  the  Constitution  from  which  Con- 
gress derives  all  its  powers,  than  by  any  express  and  direct  application  of 
its  provisions,"  is  quoted  with  approval  by  Brown,  J.,  in  his  separate  opin- 
ion in  Downes  v.  Bidwell  (1901)  182  U.  S.  244,  268,  21  Sup.  Ct.  770,  780, 
45  L.  ed.  1088,  and  is  also  quoted  in  the  opinion  of  the  court  in  Dorr  v. 
United  States  (1904)  195  U.  S.  138,  146,  24  Sup.  Ct.  808,  812,  49  L.  ed. 
128;  see  also  opinion  of  the  court  in  Dorr  v.  United  States  (1904)  195  U.  S. 
138,  148,  24  Sup.  Ct.  808,  812,  49  L.  ed.  128,  separate  opinions  of  Brown,  J., 
in  Hawaii  v.  Mankichi  (1903)  190  U.  S.  197,  218,  23  Sup.  Ct.  787,  791,  47 
L.  ed.  1016;  Downes  v.  Bidwell  (1901)  182  U.  S.  244,  282,  21  Sup.  Ct.  770, 
785,  45  L.  ed.  1088;  and  opinion  of  court  in  Knowlton  v.  Moore  (1900)  178 
U.  S.  41,  109,  20  Sup.  Ct.  747,  774,  44  L.  ed.  969,  quoted  in  opinion  last  cited. 
Consider,  however,  the  vigorous  criticisms  of  the  views  expressed  above  in 
McClain,  Written  and  Unwritten  Constitutions  in  the  United  States,  6  Col. 
L.  Rev.  69,  73,  79,  80;  Patterson,  The  United  States  and  the  States  Under 
the  Constitution,  2d  ed.,  p.  10;  Pierce,  Federal  Usurpation,  228  et  seq.; 
and  also  Campbell  v.  Jackman  Bros.  (1908)  140  Iowa,  475,  118  N.  W. 
755,  27  L.  R.  A.  N.  S.  288;  Ward  L.  Co.  v.  Henderson-White  M.  Co.  (1907) 
107  Va.  626,  59  S.  E.  476,  17  L.  R.  A.  N.  S.  324. 

97  In  United  States  v.  Cruikshank  (1875)  92  U.  S.  542,  554,  23  L.  ed. 
588,  the  court  said  that  the  Fourteenth  Amendment  "simply  furnishes  an 
additional  guaranty  against  any  encroachment  by  the  states  upon  the  fun- 
damental rights  which  belong  to  every  citizen  as  a  member  of  society." 
But  this  was  a  mere  dictum.  In  Knowlton  v.  Moore  (1900)  178  U.  S.  41, 
109,  20  Sup.  Ct.  747,  774,  44  L.  ed.  969,  the  court  mentioned  the  contention 
that  it  could  apply  "inherent  and  fundamental  principles  for  the  protec- 
tion of  the  individual,  even  though  there  be  no  express  authority  in  the 
Constitution  to  do  so"  but  said  that  the  facts  of  the  case  were  not  such 
as  to  require  the  court  to  consider  that  contention.     In  Hurtado  v.  Cali- 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  199 

guage  used  in  still  other  opinions  it  seems  quite  possible 
that  usually  if  not  always  when  the  court  says  that  the 
Fourteenth  Amendment  protects  fundamental  rights  it 

fornia  (1884)  110  U.  S.  516,  534,  535,  4  Sup.  Ct.  Ill,  292,  120,  28  L.  ed. 
232,  the  court  said  that  the  provision  for  due  process  of  law  in  the  Fifth 
Amendment  "refers  to  that  law  of  the  land  which  derives  its  authority 
from  the  legislative  powers  conferred  upon  Congress  by  the  Constitution  of 
the  United  States,  exercised  within  the  limits  therein  prescribed,  and  inter- 
preted according  to  tha  principles  of  the  common  law.  In  the  Fourteenth 
Amendment,  by  parity  of  reasoning,  it  refers  to  that  law  of  the  land  in 
each  state,  which  derives  its  authority  from  the  inherent  and  reserved 
powers  of  the  state,  exerted  within  the  limits  of  those  fundamental  princi- 
ples of  liberty  and  justice  which  lie  at  the  base  of  all  our  civil  and  political 
institutions,  and  the  greatest  security  for  which  resides  in  the  right  of  the 
people  to  make  their  o\vn  laws,  and  alter  them  at  their  pleasure."  A  large 
part  of  this  statement  is  repeated  in  In  re  Kemmler  (1890)  136  U.  S.  436, 
448,  10  Sup.  Ct.  930,  934,  34  L.  ed.  519,  and  part  of  it  which  relates  to  the 
Fourteenth  Amendment  is  repeated  in  Twining  v.  New  Jersey  (1908)  211 
U.  S.  78,  102,  29  Sup.  Ct.  14,  21,  53  L.  ed.  97,  in  such  a  connection  that  it 
is  quite  possible  that  it  is  given  a  meaning  different  from  that  which  was 
originally  intended.  In  other  portions  of  the  opinion  in  the  Hurtado  case 
the  court  assumed,  as  it  has  often  done  (see  p.  116,  supra),  that  the  pro- 
vision for  due  process  of  law,  standing  alone,  has  the  same  meaning  in  both 
the  Fifth  Amendment  and  the  Fourteenth  Amendment,  and  in  the  passage 
quoted  the  court  uses  the  expression  "by  parity  of  reason."  It  is,  there- 
fore, quite  probable  that  the  court  referred  to  "the  fundamental  principles 
of  liberty  and  justice"  merely  for  rhetorical  effect  and  that  it  did  not  ser- 
iously intend  to  declare  that  the  provision  in  the  Fourteenth  Amendment 
possesses  a  scope  wider  than  that  which  the  court  in  the  passage  quoted 
declares  to  be  the  scope  of  the  provision  in  the  Fifth  Amendment.  In 
Howard  v.  Kentucky  (1906)  200  U.  S.  164,  173,  26  Sup.  Ct,  189,  191,  50 
L.  ed.  421,  the  court  said,  "It  may  be  admitted  that  the  words  'due  pro- 
cess of  law,'  as  used  in  the  Fourteenth  Amendment,  protect  fundamental 
rights."  See  also  American  L.  Co.  v.  Zeiss  (1911)  219  U.  S.  47,  66,  31  Sup. 
Ct.  200,  207,  55  L.  ed.  82;  Carroll  v.  Greenwich  I.  Co.  (1905)  199  U.  S. 
401,  410,  26  Sup.  Ct.  66,  67,  50  L.  ed.  246;  Backus  v.  Fort  S.  U.  D.  Co. 
(1898)  169  U.  S.  557,  576,  18  Sup.  Ct.  445,  452,  42  L.  ed.  853;  Twining  v. 
New  Jersey  (1908)  211  U.  S.  78,  101,  102,  106,  110,  29  Sup.  Ct.  14,  20,  22, 
24,  53  L.  ed.  97  (with  which  compare  211  U.  S.  at  107,  29  Sup.  Ct.  at  23, 
53  L.  ed.  at  109)  ;  the  concession  simply  for  argument  in  McCray  v.  United 
States  (1904)  195  U.  S.  27,  63,  64,  24  Sup.  Ct.  769,  779,  780,  49  L.  ed.  78; 
"concurring"  opinion  in  Butchers'  U.  Co.  v.  Crescent  C.  Co.  (1884)  111  U. 
S.  746,  759,  4  Sup.  Ct.  652,  661,  662,  28  L.  ed.  585;  dissenting  opinions  in 
Slaughter  House  Cases  (1872)  16  Wall.  36,  87,  95,  106,  114,  116,  21  L. 
ed.  394. 


200  DUE  PROCESS  CLAUSES— DISCUSSION. 

means  merely  that  in  interpreting  provisions  which  are 
couched  in  general  language  it  may  regard  the  maxim 
"de  minimis  non  curat  lex."  ®^ 

9Sln  Watson  v.  Maryland  (1910)  218  U.  S.  173,  177,  30  Sup.  Ct.  644, 
646,  54  L.  ed.  987,  the  court  said,  "The  federal  courts  can  only  interfere 
when  fundamental  rights  guaranteed  by  the  Federal  Constitution  are  vio- 
lated in  the  enactment  of  such  statutes."  In  Ballard  v.  Hunter  (1907) 
204  U.  S.  241,  262,  27  Sup.  Ct.  261,  269,  51  L.  ed.  461,  it  said,  "The  laws  of 
a  state  come  under  the  prohibition  of  the  Fourteenth  Amendment  only 
when  they  infringe  fundamental  rights.  A  law  must  be  framed  and  judged 
of  in  consideration  of  the  practical  affairs  of  man."  In  Rogers  v.  Peck 
(1905)  199  U.  S.  425,  434,  26  Sup.  Ct.  87,  89,  50  L.  ed.  256,  the  court  said, 
"It  is  only  where  fundamental  rights,  specially  secured  by  the  Federal 
Constitution,  are  invaded,  that  such  interference  is  warranted,"  and  this 
position  was  cited  in  Franklin  v.  South  Carolina  (1910)  218  U.  S.  161,  165, 
30  Sup.  Ct.  640,  641,  54  L.  ed.  980.  In  Brown  v.  New  Jersey  (1899)  175 
U.  S.  172,  175,  20  Sup.  Ct.  77,  78,  44  L.  ed.  119,  the  court  said  that  the 
state  has  full  control  over  the  procedure  in  its  courts  both  in  civil  and 
criminal  cases,  "subject  only  to  the  qualification  that  such  procedure  must 
not  work  a  denial  of  fundamental  rights  or  conflict  with  specific  and  ap- 
plicable provisions  of  the  Federal  Constitution,"  and  this  statement  was 
repeated  with  approval  in  West  v.  Louisiana  (1904)  194  U.  S.  258,  263, 
24  Sup.  Ct.  650,  652,  48  L.  ed.  965 ;  Waters-Pierce  Oil  Co.  v.  Texas  ( 1909 ) 
212  U.  S.  86,  107,  29  Sup.  Ct.  220,  225,  53  L.  ed.  417.  If  the  language  just 
quoted  may  be  interpreted  as  suggested  in  the  text,  no  objection  can  be 
made  to  the  position  of  the  court,  but  the  expressions  in  those  opinions  are 
quite  objectionable  if  they  are  on  a  par  with  the  suggestions  contained  in 
the  dicta  in  Lawton  v.  Steele  (1894)  152  U.  S.  133,  140,  14  Sup.  Ct.  499, 
502,  38  L.  ed.  385,  that  "An  act  of  the  legislature  which  has  for  its  object 
the  preservation  of  the  public  interests  against  the  illegal  depredations  of 
private  individuals  ought  to  be  sustained,  unless  it  is  plainly  violative  of 
the  Constitution  or  subversive  of  private  rights,"  and  in  Halter  v.  Nebraska 
( 1907)  205  U.  S.  34,  45,  27  Sup.  Ct.  419,  423,  51  L.  ed.  696,  that  "It  would  be 
going  very  far  to  say  that  the  statute  in  question  had  no  reasonable  connec- 
tion with  the  common  good  and  was  not  promotive  of  the  peace,  order  and 
well-being  of  the  people.  Before  this  court  can  hold  the  statute  void  it 
must  say  that  and,  in  addition,  adjudge  that  it  violates  rights  secured  by 
the  Constitution  of  the  United  States.  We  cannot  so  say  and  cannot  so 
adjudge;"  and  with  the  language  of  Field,  J.,  dissenting,  in  Slaughter 
House  Cases  (1872)  16  Wall.  36,  87,  21  L.  ed.  394.— On  the  subject  of  this 
note  in  general  see  also  other  statements  in  West  v.  Louisiana  (1904)  194 
U.  S.  258,  263,  24  Sup.  Ct.  650,  652,  48  L.  ed.  965 ;  and  also  Allen  v.  Geor- 
gia (1897)  166  U.  S.  138,  140,  141,  17  Sup.  Ct.  525,  526,  41  L.  ed.  949; 
Wilson  V.  North  Carolina  (1898)  169  U.  S.  586,  594,  18  Sup.  Ct.  435,  438, 
42  L.  ed.  865.     Compare  sec.  110,  infra;  notes  17,  22  in  Chapter  5,  infra. 


EXTRA-CONSTITUTIONAl,  RESTRAINTS.  201 

* 'Essential  nature  of  all  free  governments.'* 

102.  The  court  has  also  said  that  upon  all  organs  of 
government  there  are  limitations  ''which  grow  out  of 
the  essential  nature  of  all  free  governments."^^ 

99  Madisonville  T.  Co.  v.  St.  Bernard  M.  Co.  (1905)  196  U.  S.  239,  251, 
252,  25  Sup.  Ct.  251,  256,  49  L.  ed.  462;  Loan  Assn.  v.  Topeka  (1874)  20 
Wall.  655,  662,  663,  22  L.  ed.  455  (where  the  declaration  was  made  in  spite 
of  an  able  and  unanswerable  dissenting  opinion  from  Clifford,  J.;  see  also 
the  language  of  the  author  of  the  opinion  in  Loan  Assn.  v.  Topeka  in  dis- 
senting in  Hepburn  v.  Griswold  (1869)  8  Wall.  603,  638,  19  L.  ed.  513; 
the  decision  in  Hepburn  v.  Griswold  from  which  he  dissented  was  over- 
ruled in  the  Legal  Tender  Cases  ( 1870)  12  Wall.  457,  20  L.  ed.  287,  and  the 
decision  which  he  announced  in  Loan  Assn.  v.  Topeka  was  somewhat  ex- 
plained by  him  in  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  105,  24 
L.  ed.  616).  See  also  Terrett  v.  Taylor  (1815)  9  Cranch,  43,  50,  51,  52, 
3  L.  ed.  650,  a  case  which,  it  will  be  noted,  came  from  a  lower  federal 
court  and  not  from  a  state  court,  but  where  the  opinion  should  have  re- 
ferred simply  to  the  impairment  of  contract  clause;  dictum  in  Holden  v. 
Hardy  (1898)  169  U.  S.  366,  389,  18  Sup.  Ct.  383,  387,  42  L.  ed.  780;  the 
concession  simply  for  argument  in  McCray  v.  United  States  (1904)  195 
U.  S.  27,  63,  24  Sup.  Ct.  769,  779,  49  L.  ed.  78;  suggestion  in  Giozza  v. 
Tiernan  (1893)  148  U.  S.  657,  661,  13  Sup.  Ct.  721,  723,  37  L.  ed.  599 
(with  which  suggestion  compare  language  of  author  of  that  opinion  in 
McPherson  v.  Blacker  (1892)  146  U.  S.  1,  25,  13  Sup.  Ct.  3,  7,  36  L.  ed. 
869;  New  Y.  &  N.  E.  R.  Co.  v.  Bristol  (1894)  151  U.  S.  556,  570,  14  Sup. 
Ct.  437,  441,  38  L.  ed.  269)  ;  dictum  in  Hurtado  v.  California  (1893)  110 
U.  S.  516,  535,  4  Sup.  Ct.  Ill,  292,  120,  28  L.  ed.  232  (discussed  in  note 
97,  supra)  ;  dictum  in  Wilkinson  v.  Leland  (1829)  2  Pet.  627,  656-658,  7 
L.  ed.  542;  separate  opinion  of  Chase,  J.,  in  Calder  v.  Bull  (1798)  3  Dall. 
386,  388,  1  L.  ed.  648;  suggestion  in  Fletcher  v.  Peck  (1810)  6  Cranch,  87, 
135,  136,  3  L.  ed.  162.  The  suggestion  last  cited  is  explained  in  Satterlee 
V.  Matthewson  (1829)  2  Pet.  380,  413,  414,  7  L.  ed.  458,  where,  after  saying 
that  a  state  law  which  divested  rights  which  had  been  vested  by  law,  but 
which  did  not  impair  the  obligation  of  any  contract,  would  not  violate  the 
Constitution  of  the  United  States,  the  court  pointed  out  that  the  sugges- 
tion in  Fletcher  v.  Peck  must  be  considered  simply  as  relating  to  the  state 
constitution,  which  the  court  might  interpret  in  a  case  which,  like  Fletcher 
V.  Peck,  came  to  it  from  a  federal  court  and  not  from  a  state  court. — With 
the  citations  in  this  note  compare  language  of  Iredell,  J.,  in  Calder  v. 
Bull  (1798)  3  Dall.  386,  398,  1  L.  ed.  648;  Dorman  v.  State  (1859)  34  Ala. 
216,  232  et  seq.;  Black,  Constitutional  Law,  3d  ed.,  p.  72,  2d  ed.,  pp.  63,  64; 
Patterson,  The  United  States  and  the  States  Under  the  Constitution,  2d 
ed.,  p.  10;  Boudin,  Government  by  Judiciary,  26  Pol.  Sci.  Quar.  238,  265  et 
seq.;    Cooley,   Constitutional  Limitations,   7th   ed.,   237-239;    McClain,   Un- 


202  DUE  PROCESS  CLAUSES— DISCUSSION. 

Discussion  on  inalienable  rights,  etc. 

103.  The  statements  concerning  inalienable  rights  to 
which  we  have  referred  follow  the  language  of  a  broad 
assertion  of  general  principle  which  is  made  at  the  outset 
of  the  Declaration  of  Independence.  But  the  assertion  of 
such  a  general  principle  in  the  Declaration  of  Indepen- 
dence does  not  show  that  the  courts  may  declare  that  leg- 
islation is  void  because  it  violates  what  the  courts  may- 
determine  to  be  inalienable  rights,  for  the  Declaration  is 
not  a  part  of  the  Constitution  of  the  United  States,^*^" 
and  even  if  it  were  part  of  that  Constitution  it  would  be 
going  far  to  say  that  the  general  statement  of  the  Decla- 
ration of  Independence  that  men  possess  inalienable 
rights  should  be  given  a  weight  which  the  court  re- 
written Constitutions  in  the  United  States,  15  Harv.  L.  Rev.  531;  Story  on 
the  Constitution,  5th  ed.,  II,  568,  note;  Dale,  Implied  Limitations  Upon 
Legislative  Power,  24  Am.  Bar.  Assn.  Proc.  294,  315-319;  separate  opin- 
ion of  Knox,  J.,  in  Sharpless  v.  Mayor  of  Philadelphia  (1853)  21  Pa.  St. 
147,  186,  187. — There  is  a  dictum  in  Jacobson  v.  Massachusetts  (1905)  197 
U.  S.  11,  29,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643,  that  "There  is,  of  course, 
a  sphere  within  which  an  individual  may  assert  the  supremacy  of  his  own 
will,  and  rightfully  dispute  the  authority  of  any  human  government,  es- 
pecially of  any  free  government  existing  under  a  written  constitution,  to 
interfere  with  the  exercise  of  that  will."  But,  of  course,  it  cannot  be  suc- 
cessfully contended  that  in  all  free  governments  in  which  there  are  written 
constitutions  the  courts  may  interfere  to  enforce  the  provisions  of  those 
constitutions.  And  even  in  the  United  States,  where  the  courts  do  enforce, 
with  some  exceptions,  the  provisions  of  the  written  constitutions,  the  mere 
fact  that  a  constitution  is  written  is  immaterial  apart  from  the  contents 
of  tliat  constitution,  unless,  indeed,  we  may  say  that  "Given  a  sufficient 
hardihood  of  purpose  at  the  rack  of  exegesis,  and  any  document,  no  matter 
what  its  fortitude,  will  eventually  give  forth  the  meaning  required  of  it:" 
7  Mich.  L.  Rev.  643. 

100  Yet  the  language  of  Bradley,  J.,  dissenting,  in  Slaughter  House 
Cases  (1872)  16  Wall.  36,  120,  21  L.  ed.  394;  concurring,  in  Butchers'  U. 
Co.  V.  Crescent  C.  Co.  (1884)  111  U.  S.  746,  762,  4  Sup.  Ct.  652,  657,  28 
L.  ed.  585,  suggests  that  it  was  his  opinion  that  our  modern  legislative 
bodies  are  restrained  even  by  some  of  the  old  English  statutes.  Compare 
Beard,  The  Supreme  Court  and  the  Constitution,  chap.  4,  as  showing  the 
relation  of  the  Constitution  to  the  Declaration  of  Independence. 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  203 

fuses  ^^'^  to  give  to  the  general  statements  in  the  Preamble 
to  that  Constitution  which  was  framed  in  1787.  The  state- 
ments concerning  inalienable  rights  are,  therefore,  in  the 
same  category  as  those  concerning  natural  justice,  those 
concerning  the  possession  of  fundamental  rights  which 
are  not  expressed  in  the  constitutions  and  those  concern- 
ing rights  which  are  said  to  grow  out  of  the  essential 
nature  of  all  free  governments. 

As  to  all  such  statements,  and  most  if  not  all  of  them 
are  merely  dicta,^*^^  it  is  sufficient  to  say  that  the  premises 
upon  which  they  are  based  have  been  abandoned  by 
thoughtful  men  for  over  a  century, ^'^^  that  those  state- 
ments are  against  the  vast  weight  of  direct  authority,  and 
that  the  court  has  not  attempted  to  support  those  state- 
ments by  any  discussion  of  principle. 

Scope  of  govemmental  authority. 

104.  The  Supreme  Court  has  also  said  that  the  due 

101  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  11,  22,  25  Sup.  Ct.  358, 
359,  49  L.  ed.  643. 

102  See,  however,  discussions  in  sections  104-106,  infra,  of  decisions  of 
which  some  may  be  in  reality,  though  not  avowedly,  based  upon  such 
grounds. 

103  On  the  theory  of  natural  justice  see  note  95,  supra,  and  Lee  v.  Bude 
&  T.  J.  Ry.  Co.  (1871)  L.  R.  6  C.  P.  576,  582;  Dicey,  The  Law  of  the  Con- 
stitution, 7th  ed.,  59;  Holland,  Elements  of  Jurisprudence,  10th  ed.,  36,  37; 
Huxley,  Methods  and  Results  Essays,  essay  entitled  "Natural  Rights  and 
Political  Rights";  Ritchie,  Natural  Rights;  Salmond,  The  Law  of  Nature, 
11  Law  Quar.  Rev.  121;  Bryce,  Studies  in  History  and  Jurisprudence,  II, 
essay  entitled  "The  Law  of  Nature";  Pollock,  Tlie  Expansion  of  the  Com- 
mon Law,  109,  121;  Pollock,  The  History  of  the  Law  of  Nature,  1  Col.  L. 
Rev.  17,  2  Col.  L.  Rev.  131;  Pollock's  Maine's  Ancient  Law,  chap.  3;  Pol- 
lock, The  Law  of  Reason,  2  Mich.  L.  Rev.  at  168,  169;  book  reviews,  26 
Law  Quar.  Rev.  173,  167,  168;  Willoughby,  The  Nature  of  the  State,  chap. 
5.  Consider  also  the  discussion  in  Pound,  Common  Law  and  Legislation, 
21  Harv.  L.  Rev.  383;  Corwin,  The  Establishment  of  Judicial  Review,  9 
Mich.  L.  Rev.  102,  115,  306;  Boudin,  Government  by  Judiciary,  26  Pol.  Sci. 
Quar.  238,  265  et  seq. 


204  DUE  PROCESS  CLAUSES— DISCUSSION. 

process  clause  of  the  Fourteenth  Amendment  prohibits 
acts  which  are  beyond  the  scope  of  governmental  autlior- 
ity.i«4 

This  position  we  must  carefully  distinguish  from  the 
position  which  was  taken  by  the  court  when  it  decided 
that  the  clause  of  the  Fourteenth  Amendment  prohibits 
interference  with  property  over  which  the  state  has  no 
jurisdiction,  as  where  the  federal  government  has  exclu- 
sive control  over  the  property/^^  or  where  the  situs  of 

104  See  dicta  in  Cunnius  v.  Heading  School  Dist.  (1905)  198  U.  S.  458, 
469,  471,  476,  25  Sup.  Ct.  721,  724,  725,  727,  49  L.  ed.  1125;  Smiley  v.  Kansas 
(1905)  196  U.  S.  447,  456,  25  Sup.  Ct.  289,  291,  29  L.  ed.  546;  and  also 
Fletcher  v.  Peck  (1810)  6  Cranch,  87,  135,  3  L.  ed.  162;  Missouri  P.  Ry. 
Co.  V.  Humes  (1885)  115  U.  S.  512,  520,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463; 
Lochner  v.  New  York  (1905)  198  U.  S.  45,  56,  25  Sup.  Ct.  539,  542,  543, 
49  L.  ed,  937;  Lawton  v.  Steele  (1894)  152  U.  S.  133,  137,  14  Sup.  Ct.  499, 
501,  38  L.  ed.  385;  Adair  v.  United  States  (1908)  208  U.  S.  161,  174,  175, 
28  Sup.  Ct.  277,  280,  52  L.  ed.  436;  American  L.  Co.  v.  Zeiss  (1911)  219 
U.  S.  47,  66,  31  Sup.  Ct.  20O,  207,  55  L.  ed.  82;  Interstate  Com.  Comn.  v. 
Illinois  C.  R.  Co.  (1910)  215  U.  S.  452,  470,  30  Sup.  Ct.  155,  160,  54  L.  ed. 
280;  McLean  v.  Arkansas  (1909)  211  U.  S.  539,  548,  29  Sup.  Ct.  206,  208, 
53  L.  ed.  315;  National  Ex.  Bank  v.  Wiley  (1904)  195  U.  S.  257,  270,  25 
Sup.  Ct.  70,  75,  49  L.  ed.  184;  Howard  v.  Kentucky  (1906)  200  U.  S.  164, 
173,  26  Sup.  Ct.  189,  191,  50  L.  ed.  421;  Campbell  v.  California  (1906) 
200  U.  S.  87,  95,  26  Sup.  Ct.  182,  185,  50  L.  ed.  382  (the  last  of  which  arose 
under  the  equal  protection  provision ) .  Compare  Shattuck,  The  True 
Meaning  of  the  Term  "Liberty,"  4  Harv.  L.  Rev.  369,  375,  376,  380,  386; 
McMurtrie,  The  Jurisdiction  to  Declare  Void  Acts  of  Legislation,  32  Am. 
L.  Reg.  N.  S.  1007,  1008;  authorities  in  notes  10,  12,  13  in  Chapter  2, 
supra,  146,  infra. 

105  Green  B.  &  M.  C.  Co.  v.  Patten  P.  Co.  (1898)  172  U.  S.  58,  82,  19 
Sup.  Ct.  97,  106,  43  L.  ed.  364  (1899)  173  U.  S.  179,  19  Sup.  Ct.  316,  43 
L.  ed.  658.  But  that  clause  is  not  violated  by  state  taxation  of  distilled 
spirits  in  bonded  warehouses:  Hannis  D.  Co.  v.  Baltimore  (1910)  216 
U.  S.  285,  30  Sup.  Ct.  326,  54  L.  ed.  482;  Thompson  v.  Kentucky  (1908) 
209  U.  S.  340,  28  Sup.  Ct.  533,  52  L.  ed.  822;  Carstairs  v.  Cochran  (1904) 
193  U.  S.  10,  24  Sup.  Ct.  318,  48  L.  ed.  596.  Compare  Western  U.  T.  Co. 
V.  Chiles  (1909)  214  U.  S.  274,  29  Sup.  Ct.  613,  53  L.  ed.  994,  where  it 
was  held  that  in  view  of  Art.  I,  sec.  8,  par.  17,  of  the  Federal  Constitution 
a  state  law  relating  to  the  delivery  of  telegrams  could  not  constitutionally 
be  applied  to  delivery  within  a  navy  yard,  the  land  for  which  had  been 
ceded  by  the  state  to  the  federal  government. — In  the  Corporation   Tax 


EXTRA-CONSTITUTIONAL  RESTRAINTS.  205 

property  on  which  a  tax  is  based  is  within  another 
state,^*^^  or  where  a  defendant  against  whom  a  judgment 
in  personam  is  sought  is  not  within  the  jurisdiction  of  the 

Cases,  Flint  v.  Stone  Tracy  Co.  (1911)  220  U.  S.  107,  152,  158,  172,  31  Sup. 
Ct.  342,  349,  352,  357,  55  L.  ed.  389,  the  court  decided  that  "the  mere  fact 
that  the  business  taxed  is  done  in  pursuance  of  authority  granted  by  a 
state  in  the  creation  of  private  corporations  does  not  exempt  it  from  the 
exercise  of  federal  authority  to  levy  excise  taxes  upon  such  privileges." 

106  Buck  V.  Beach  (1907)  206  U.  S.  392,  27  Sup.  Ct.  712,  51  L.  ed.  1106; 
Union  R.  T.  Co.  v.  Kentucky  (1905)  199  U.  S.  194,  26  Sup.  Ct.  36,  50  L. 
ed.  150  (where  two  justices  dissented  on  this  point)  ;  Delaware,  L.  &  W. 
R.  Co.  V,  Pennsylvania  (1905)  198  U.  S.  341,  25  Sup.  Ct.  669,  49  L.  ed. 
1077;  Louisville  &  J.  F.  Co.  v.  Kentucky  (1903)  188  U.  S.  385,  23  Sup.  Ct. 
463,  47  L.  ed.  513;  Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S.  1,  30 
Sup.  Ct.  190,  54  L.  ed.  355;  Pullman  Co.  v.  Kansas  (1910)  216  U.  S.  56,  30 
Sup.  Ct.  232,  54  L.  ed.  88;  Ludwig  v.  Western  U.  T.  Co.  (1910)  216  U.  S. 
146,  30  Sup.  Ct.  280,  54  L.  ed.  423.  See  also  Selliger  v.  Kentucky  (1909) 
213  U.  S.  200,  29  Sup.  Ct.  449,  53  L.  ed.  761;  Metropolitan  L.  L  Co.  v. 
New  Orleans  (1907)  205  U.  S.  395,  399,  27  Sup.  Ct.  499,  500,  51  L.  ed. 
853;  People  ex  reL  New  Y.  C.  &  H.  R.  R.  Co.  v.  Miller  (1906)  202  U.  S. 
584,  26  Sup.  Ct.  714,  50  L.  ed.  1155;  and  the  following  tax  cases,  some  of 
which  did  not  arise  under  the  due  process  provision:  Meyer  v.  Wells,  Fargo 
&  Co.  (1912)  223  U.  S.  298,  32  Sup.  Ct.  218,  56  L.  ed.  445;  Ayer  &  Lord  T. 
Co.  V.  Kentucky  (1906)  202  U.  S.  409,  26  Sup.  Ct.  679,  50  L.  ed.  1082; 
Fargo  V.  Hart  (1904)  193  U.  S.  490,  24  Sup.  Ct.  498,  48  L.  ed.  761;  New  Y., 
L.  E.  &  W.  R.  Co.  V.  Pennsylvania  (1894)  153  U.  S.  628,  646,  14  Sup.  Ct. 
952,  958,  38  L.  ed.  846;  Ashley  v.  Ryan  (1894)  153  U.  S.  436,  440,  446,  14 
Sup.  Ct.  865,  866,  868,  38  L.  ed.  773;  State  Tax  on  Foreign-held  Bonds 
(1872)  15  Wall.  300,  319,  325,  326,  21  L.  ed.  179;  Railroad  Co.  v.  Jackson 
(1868)  7  Wall.  262,  268,  19  L.  ed.  88  (where  two  justices  dissented); 
United  States  v.  Rice  (1819)  4  Wheat.  246,  4  L.  ed.  562.  With  cases  in 
this  note  compare  Selover,  Bates  &  Co.  v.  Walsh  (1912)  226  U,  S.  112,  33 
Sup.  Ct.  69,  57  L.  ed.  146;  Keeney  v.  New  York  (1912)  222  U.  S.  525, 
32  Sup.  Ct.  105,  56  L.  ed.  299;  Southern  P.  Co.  v.  Kentucky  (1911)  222  U.  S. 
63,  32  Sup.  Ct.  13,  56  L.  ed.  96;  Liverpool  &  L.  &  G.  Ins.  Co.  v.  Board  of 
Assessors  (1911)  221  U.  S.  346,  31  Sup.  Ct.  550,  55  L.  ed.  762;  Orient  Ins. 
Co.  v.  Board  of  Assessors  (1911)  221  U.  S.  358,  31  Sup.  Ct.  554,  55  L.  ed. 
769;  Hannis  D.  Co.  v.  Baltimore  (1910)  216  U.  S.  285,  30  Sup.  Ct.  326, 
54  L.  ed.  482;  Central  R.  Co.  v.  Jersey  City  (1908)  209  U.  S.  473,  28  Sup. 
Ct.  592,  52  L.  ed.  896;  Hatch  v.  Reardon  (1907)  204  U.  S.  152,  158,  27  Sup. 
Ct.  188,  189,  51  L.  ed.  415;  19  Harv.  L.  Rev.  206;  20  Harv.  L.  Rev.  138, 
313.— In  Hammond  P.  Co.  v.  Arkansas  (1909)  212  U.  S.  322,  342,  343,  29 
Sup.  Ct.  370,  376,  377,  53  L.  ed.  530,  the  court  decided  that  in  spite  of  the 
due  process  clause  of  the  Fourteenth  Amendment  a  state  may  forbid  a  cor- 
poration to  do  business  within  its  limits  because  of  acts  done  beyond  the 


206  DUE  PROCESS  CLAUSES— DISCUSSION. 

state.^^^  The  court  is  not  saying  that  where  one  govern- 
ment or  one  organ  of  government  possesses  sole  authority 
over  a  subject  that  jDower  may  not  be  lawfully  exercised 
by  another  government  or  another  organ  of  govern- 
ment. ^^^  It  declares  broadly  that  the  acts  referred  to  are 
beyond  the  scope  of  governmental  authority. 

So  also  the  position  which  we  have  noted  is  not  analo- 
gous to  that  which  was  taken  by  the  court  when  it  said 
that  the  due  process  provision  prohibits  acts  by  state 
courts  in  matters  over  which  the  state  has  not  given  them 
jurisdiction.^*^^ 

state.  See,  along  the  same  line,  United  States  v.  Nord  Deutscher  Lloyd 
(1912)  223  U.  S.  512,  32  Sup.  Ct.  244,  56  L.  ed.  531.  With  these  two  cases 
compare  American  B.  Co.  v.  United  F.  Co.  (1909)  213  U.  S.  347,  29  Sup. 
Ct.  511,  53  L.  ed.  826.  In  Olmsted  v.  Olmsted  (1910)  216  U.  S.  386,  30 
Sup.  Ct.  292,  54  L.  ed.  530;  Fall  v.  Eastin  (1909)  215  U.  S.  1,  29  Sup.  Ct. 
148,  54  L.  ed.  65;  Brown  v.  Fletcher's  Estate  (1908)  210  U.  S.  82,  28  Sup. 
Ct.  702,  52  L.  ed.  966,  it  was  held  that  the  full  faith  and  credit  clause  did 
not  require  the  courts  of  one  state  to  recognize  acts  by  another  state  which 
sought  to  affect  the  title  to  property  but  which  acts  were  beyond  the  juris- 
diction of  the  latter  state.  See  also  Nielsen  v.  Oregon  (1909)  212  U.  S. 
315,  29  Sup.  Ct.  383,  53  L.  ed.  528;  Strassheim  v.  Daily  (1911)  221  U.  S. 
280,  31  Sup.  Ct.  558,  55  L.  ed.  735;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Sowers 
(1909)   213  U.  S.  55,  29  Sup.  Ct.  397,  53  L.  ed.  695;  The  Hamilton   (1907) 

207  U.  S.  398,  28  Sup.  Ct.  133,  52  L.  ed.  264,  which  dealt  with  the  question 
of  extra-territoriality  but  which  did  not  arise  under  the  due  process  pro- 
vision. 

107  Old  W.  M.  L.  Assn.  v.  McDonough  (1907)  204  U.  S.  8,  27  Sup.  Ct. 
236,  51  L.  ed.  345;  Pennoyer  v.  Neff  (1S77)  95  U.  S.  714,  722,  24  L.  ed. 
565.  See  also  Brown  v.  Fletcher's  Estate  (1908)  210  U.  S.  82,  28  Sup.  Ct. 
702,  52  L.  ed.  966.  Compare  Commercial  M.  A.  Co.  v.  Davis  (1909)  213 
U.  S.  245,  29  Sup.  Ct.  445,  53  L.  ed.  782. 

108  See  discussion  in  Pennoyer  v.  Neff  (1877)  95  U.  S.  714,  722,  24  L.  ed. 
565;  The  Hamilton  (1907)  207  U.  S.  398,  28  Sup.  Ct.  133,  52  L.  ed.  264; 
Strassheim  v.  Daily  (1911)  221  U.  S.  280,  31  Sup.  Ct.  558,  55  L.  ed.  735; 
Ba«on  v.  Illinois  (1913)  227  U.  S.  504,  33  Sup.  Ct.  299,  57  L.  ed.  615;  and 
also  note  2  in  Chapter  2,  supra. 

109  Scott  V.  McNeal  (1894)  154  U.  S.  34,  14  Sup.  Ct.  1108,  38  L.  ed.  896, 
explained  in  Cunnius  v.  Reading  School  Dist.  (1905)  198  U.  S.  458,  475, 
25  Sup.  Ct.  721,  726,  49  L.  ed.  1125.     (It  seems,  however,  that  the  court 


EEASOXABLENESS.  207 

Nor  is  the  court  restricting  its  assertion  of  power  even 
to  a  claim  that  it  may  declare  state  legislation  invalid  upon 
the  ground  that  in  the  opinion  of  the  court  it  is  not  au- 
thorized by  a  general  grant  of  legislative  power  in  a  state 
constitution,  upon  which  point  it  seems  clear  that  the 
court  would  hold  that  the  decision  of  the  state  court  was 
conclusive.^  ^" 

The  assertion  can  be  nothing  less  than  that  the  due 
process  provision  empowers  the  court  to  declare  that  the 
state  itself  cannot  do  some  acts  which  are  not  forbidden 
by  other  provisions  of  the  Federal  Constitution,  and  that 
it  cannot  do  those  acts  in  any  manner  or  by  any  proced- 
ure whatever.  And  the  court  has  never  shown  any  justi- 
fication for  taking  such  a  position. 

REASONABLENESS. 

Unreasonable  or  arbitrary  governmental  action. 

105.  The  court  upon  several  occasions  has  decided  that 
the  due  process  clauses  authorize  the  court  to  declare  that 
actions  by  other  organs  of  government  which  the  court 

would  hold  that  the  state  could  not  have  authorized  the  state  court  to  do 
just  as  it  did  in  this  case.)  See  also  19  Harv.  L.  Eev.  535:  Savings  Bank 
V.  Weeks  (1906)  103  Md.  601,  64  Atl.  295,  6  L.  E.  A.  N.  S.  690;  In  re 
Kelly  (1890)  46  Fed.  653;  Western  U.  T.  Co.  v.  Myatt  (1899)  98  Fed. 
335  (to  be  read  in  the  light  of  Dreyer  v.  Illinois  (1902)  187  U.  S.  71,  84, 
23  Sup.  Ct.  28,  32,  47  L.  ed.  79)  ;  Valentina  v.  Mercer  (1906)  201  U.  S.  131, 
26  Sup.  Ct.  368,  50  L.  ed.  693;  Howard  v.  Kentucky  (1906)  200  U.  S.  164, 
173,  26  Sup.  Ct.  189,  191,  50  L.  ed.  421.  Compare  Lent  v.  Tillson  (1891) 
140  U.  S.  316,  331,  11  Sup.  Ct.  825,  831,  35  L.  ed.  419;  Eawlins  v.  Georgia 
(1906)  201  U.  S.  638,  26  Sup.  Ct.  560,  50  L.  ed.  899;  Atlantic  C.  L.  E.  Co. 
V.  North  Carolina  Corp.  Comn.  (1907)  206  U.  S.  1,  27  Sup.  Ct.  585,  51  L. 
ed.  933;  Consolidated  E.  Co.  v.  Vermont  (1908)  207  U.  S.  541,  28  Sup.  Ct. 
178,  52  L.  ed.  327. 

110  See  pp.  132,  133,  supra. 


208  DUE  PROCESS  CLAUSES— DISCUSSION. 

considers  unreasonable  ^^^  or  arbitrary  ^^^  are  unconstitu- 
tional even  though  they  do  not  violate  any  procedural 
requirements  of  the  Constitution ;  and  in  addition  to  these 
cases  in  which  governmental  action  was  declared  invalid, 
there  are  a  number  of  other  cases  in  which  the  court  has 
either  said  or  suggested  that  such  action  would  violate 

111  In  Eubank  v.  Richmond  (1912)  226  U.  S.  137,  33  Sup.  Ct.  76,  57  L. 
ed.  156,  that  was  one  of  the  grounds  upon  which  the  court  declared  un- 
constitutional an  ordinance  relating  to  the  establishment  of  a  building 
line  upon  request  of  owners  of  two-thirds  of  the  abutting  property.  The  de- 
cision seems  to  be  clearly  unreasonable.  In  Adair  v.  United  States  (1908) 
208  U.  S.  161,  28  Sup.  Ct.  277,  52  L.  ed.  436,  that  was  one  of  the  grounds 
upon  which  the  court  declared  unconstitutional  a  federal  statute  which 
forbade  interstate  carriers  and  their  officials  to  discharge  employees  be- 
cause of  membership  in  labor  organizations.  In  Lochner  v.  New  York 
(1905)  198  U.  S.  45,  25  Sup.  Ct.  539,  49  L.  ed.  937,  a  law  which  limited 
the  number  of  hours  of  labor  in  bakeries  and  in  Lake  S.  &  M.  S.  Ry.  Co.  v. 
Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  efl.  858,  a  state  law 
which  limited  the  charge  for  mileage  tickets  were  declared  unconstitu- 
tional upon  that  ground.  See  also  pp.  226-228,  infra,  for  decisions  on  the 
reasonableness  of  maximum  rates  of  charges. 

112  Adair  v.  United  States  (1908)  208  U.  S.  161,  175,  180,  28  Sup.  Ct. 
277,  280,  283,  52  L.  ed.  436;  Lochner  v.  New  York  (1905)  198  U.  S.  45,  62, 
25  Sup.  Ct.  539,  545,  49  L.  ed.  937;  Missouri  P.  Ry.  Co.  v.  Tucker  (1913) 
230  U.  S.  340,  351,  33  Sup.  Ct.  961,  964,  57  L.  ed.  1507.  In  Dobbins  v.  Los 
Angeles  (1904)  195  U.  S.  223,  25  Sup.  Ct.  18,  49  L.  ed.  169,  reversing  the 
decision  of  the  highest  state  court,  it  declared  that  an  ordinance  which 
changed  the  territorial  limits  within  which  gas  works  might  be  erected 
was,  under  the  circumstances  disclosed,  arbitrary  and  discriminatory  and, 
therefore,  in  violation  of  the  due  process  provision.  In  saying  that  the 
ordinance  was  arbitrary  it  is  quite  possible  that  the  court  meant  that  there 
was  not  a  sufficient  reason  for  its  enactment.  In  Scott  v.  McNeal  (1894) 
154  U.  S.  34,  45,  14  Sup.  Ct.  1108,  1112,  38  L.  ed.  896,  where  a  state  court 
which  had  jurisdiction  to  administer  the  estates  of  decedents  exceeded  that 
jurisdiction  and  administered  the  estate  of  a  person  who  was  in  fact  alive, 
the  Supreme  Court  quoted  with  approval  the  statement  in  an  earlier  opin- 
ion that  the  due  process  provision  was  intended  "to  secure  the  individual 
from  the  arbitrary  exercise  of  the  powers  of  government,  unrestrained  by 
the  established  principles  of  private  rights  and  distributive  justice."  The 
Supreme  Court  case  in  which  the  language  quoted  first  appeared  related 
simply  to  a  question  of  procedure.  See  remarks  on  that  language  in  24 
Harv.  L.  Rev.  476,  note.  And  see  discussion  of  Scott  v.  McNeal  in  Cun- 
nius  V.  Reading  School  Dist.  (1905)  198  U.  S.  458,  25  Sup.  Ct.  721,  49 
L.  ed.  1125. 


REASONABLENESS.  209 

the  due  process  provision  if  unreasonable  ^  ^^  or  arbitrary. 
The  latter  word  is  apparently  used  in  the  instances  which 

113  American  L.  Co.  v.  Zeiss  (1911)  219  U.  S.  47,  66,  67,  31  Sup.  Ct.  200, 
207,  55  L.  ed.  82;  House  v.  Mayes  (1911)  219  U.  S.  270,  284,  285,  31  Sup. 
Ct.  234,  237,  55  L.  ed.  213;  Brodnax  v.  Missouri  (1911)  219  U.  S.  285, 
292,  293,  31  Sup.  Ct.  238,  239,  55  L.  ed.  219;  Griffith  v.  Connecticut  (1910) 

218  U.  S.  563,  569,  31  Sup.  Ct.  132,  133,  54  L.  ed.  1151;  Ling  Su  Fan  v. 
United  States  (1910)  218  U.  S.  302,  311,  31  Sup.  Ct.  21,  23,  54  L.  ed. 
1049;  Watson  v.  Maryland  (1910)  218  U.  S.  173,  178,  30  Sup.  Ct.  644, 
646,  54  L.  ed.  987;  Lemieux  v.  Young  (1909)  211  U.  S.  489,  496,  29  Sup. 
Ct.  174,  176,  53  L.  ed.  295;  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp. 
Comn.  (1907)  206  U.  S.  1,  20,  27  Sup.  Ct.  585,  592,  51  L.  ed.  933;  Schmid- 
inger  v.  Chicago  (1913)  226  U.  S.  578,  588,  33  Sup.  Ct.  182,  184,  57  L.  ed. 
364;  Missouri  P.  Ry.  Co.  v.  Kansas  (1910)  216  U.  S.  262,  274,  275,  276, 
30  Sup.  Ct.  330,  334,  335,  54  L.  ed.  472;  West  C.  S.  R.  Co.  v.  People  (1906) 
201  U.  S.  506,  524,  526,  26  Sup.  Ct.  518,  522,  524,  50  L.  ed.  845;  Chicago, 
B.  &  Q.  Ry.  Co.  V.  People  (1906)  200  U.  S.  561,  592,  593,  26  Sup.  Ct,  341, 
350,  50  L.  ed.  596;  Cunnius  v.  Reading  School  Dist.  (1905)  198  U.  S.  458, 
476,  25  Sup.  Ct.  721,  727,  49  L.  ed.  1125;  Jacobson  v.  Massachusetts  (1905) 
197  U.  S.  11,  28,  29,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643;  Wisconsin,  M.  & 
P.  R.  Co.  V.  Jacobson  (1900)  179  U.  S.  287,  296,  297,  301,  21  Sup.  Ct. 
115,  118,  119,  120,  43  L.  ed.  1194;  Gundling  v.  Chicago  (1900)  177  U.  S. 
183,  188,  20  Sup.  Ct.  633,  635,  44  L.  ed.  725;  Holden  v.  Hardy  (1898)  169 
U.  S.  366,  392,  395,  398,  18  Sup.  Ct.  383,  388,  389,  390,  42  L.  ed.  780;  Yick  Wo 
V.  Hopkins  (1886)  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  ed.  220.  See  also 
Lindsley  v.  Natural  C.  G.  Co.  (1911)  220  U.  S.  61,  77,  31  Sup.  Ct.  337,  340, 
55  L.  ed.  369;  Noble  State  Bank  v.  Haskell  (1911)  219  U.  S.  104,  112,  31 
Sup.  Ct.  186,  188,  55  L.  ed.  112;  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed 
(1910)  219  U.  S.  35,  43,  31  Sup.  Ct.  136,  138,  55  L.  ed.  78;  Williams  v. 
Arkansas  (1910)  217  U.  S.  79,  30  Sup.  Ct.  493,  54  L.  ed.  673;  Welch  v. 
Swasey  (1909)  214  U.  S.  91,  105,  108,  29  Sup.  Ct.  567,  570,  571,  53  L.  ed. 
923;  People  v.  Van  de  Carr  (1905)  199  U.  S.  652,  563,  26  Sup.  Ct.  144,  147, 
50  L.  ed.  305;  Gardner  v.  Michigan  (1905)  199  U.  S.  325,  332,  26  Sup.  Ct. 
106,  109,  50  L.  ed.  212;  California  R.  Co.  v.  Sanitary  R.  W^orks  (1905)  199 
U.  S.  306,  320,  20  Sup.  Ct.  100,  104,  50  L.  ed.  204;  Quong  Wing  v.  Kirken- 
dall  (1912)  223  U.  S.  59,  62,  32  Sup.  Ct.  192,  193,  56  L.  ed.  350;  Mutual  L. 
Co.  V.  Martell  (1911)  222  U.  S.  225,  234,  32  Sup.  Ct.  74,  75,  56  L.  ed.  175; 
New  York  v.  Hesterberg  (1908)  211  U.  S.  31,  39,  29  Sup.  Ct.  10,  12,  53  L. 
ed.  75;  Hanover  Nat.  Bk.  v.  Moyses  (1902)  186  U.  S.  181,  192,  22  Sup.  Ct. 
857,  862,  46  L.  ed.  1113;  and  cases  on  maximum  rates  of  charges,  discussed 
on  pp.  226-228,  231,  232,  infra.  Compare  Red  "C"  O.  M.  Co.  v.  Board  of 
Agriculture  (1912)  222  U.  S.  380,  394,  32  Sup.  Ct.  152,  156,  56  L.  ed.  240; 
Flint  V.  Stone  Tracy  Co.  (1911)  220  U.  S.  107,  158,  167,  169,  31  Sup.  Ct. 
342,  352,  355,  356,  55  L.  ed.  389;  Chicago,  B.  &  Q.  R.  Co.  v.  McGuire  (1911) 

219  U.  S.  549,  569,  31  Sup.  Ct.  259,  263,  55  L.  ed.  328;  Patton  v.  Brady 
(1902)   184  U.  S.  608,  623,  22  Sup.  Ct.  493,  498,  46  L.  ed.  713. 

14 


210  DUE  PROCESS  CLAUSES— DISCUSSION. 

are  cited^^^  as  meaning  oppressive  or  unjust  or  not  based 
upon  a  sufficient  reason. 

114  Barrett  v.  Indiana  (1913)  229  U.  S.  26,  29,  33  Sup.  Ct.  692,  693,  57 
L.  ed.  1050:  Interstate  Com.  Comn.  v.  Louisville  &  N.  R.  Co.  (1913)  227 
U.  S.  88,  91,  33  Sup.  Ct.  185,  186,  187,  57  L.  ed.  431;  Missouri  P.  Ry.  Co. 
V.  Kansas  (1910)  216  U.  S.  262,  274,  275,  276,  30  Sup.  Ct.  330,  334,  335, 
54  L.  ed.  472;  New  York  v.  Hesterberg  (1908)  211  U.  S.  31,  39,  29  Sup.  Ct. 
10,  12,  53  L.  ed.  75;  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Comn, 
(1907)  206  U.  S.  1,  20,  27  Sup.  Ct.  585,  592,  51  L.  ed.  933;  Schmidinger  v. 
Chicago  (1913)  226  U.  S.  578,  588,  33  Sup.  Ct.  182,  184,  57  L.  ed.  364; 
Interstate  Com.  Comn.  v.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  547,  553, 
32  Sup.  Ct.  108,  111,  113,  56  L.  ed.  308;  German  A.  Ins.  Co.  v.  Hale  (1911) 
219  U.  S.  307,  316,  31  Sup.  Ct.  246,  248.  55  L.  ed.  229;  Brodnax  v. 
Missouri  (1911)  219  U.  S.  285,  292,  293,  31  Sup.  Ct.  238,  239,  55 
L.  ed.  219;  House  v.  Mayes  (1911)  219  U.  S.  270,  284,  285,  31  Sup.  Ct.  234, 
237,  55  L.  ed.  213;  American  L.  Co.  v.  Zeiss  (1911)  219  U.  S.  47,  66,  31  Sup. 
Ct.  200,  207,  55  L.  ed.  82;  Ling  Su  Fan  v.  United  States  (1910)  218  U.  S. 
302,  311,  31  Sup.  Ct.  21,  23,  54  L.  ed.  1049;  Kidd,  D.  &  P.  Co.  v.  Musselman 
G.  Co.  (1910)  217  U.  S.  461,  473,  30  Sup.  Ct.  606,  607,  54  L.  ed.  839;  Mc- 
Lean V.  Arkansas  (1909)  211  U.  S.  539,  547,  548,  29  Sup.  Ct.  206,  208,  53 
L.  ed.  315;  Lemieux  v.  Young  (1909)  211  U.  S.  489,  496,  29  Sup.  Ct.  174, 
176,  53  L.  ed.  295;  West  C.  S.  R.  Co.  v.  People  (1906)  201  U.  S.  506,  524, 
526,  26  Sup.  Ct.  522,  524,  50  L.  ed.  845;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People 
(1906)  200  U.  S.  561,  592,  593,  26  Sup.  Ct.  341,  350,  50  L.  ed.  596;  People 
V.  Van  de  Carr  (1905)  199  U.  S.  552,  563,  26  Sup.  Ct.  144,  147,  50  L.  ed. 
305;  California  R.  Co.  v.  Sanitary  R.  Works  (1905)  199  U.  S.  306,  320,  26 
Sup.  Ct.  100,  104,  50  L.  ed.  204;  Cunnius  v.  Reading  School  Dist.  (1905) 
198  U.  S.  458,  476,  25  Sup.  Ct.  721,  727,  49  L.  ed.  1125;  Jacobson  v.  Mas- 
sachusetts (1905)  197  U.  S.  11,  28,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643; 
Otis  V.  Parker  (1903)  187  U.  S.  606,  608,  23  Sup.  Ct.  168,  169,  47  L.  ed. 
323;  Lawton  v.  Steele  (1894)  152  U.  S.  133,  140,  14  Sup.  Ct.  499,  502,  38 
L.  ed.  385;  Yick  Wo  v.  Hopkins  (1886)  118  U.  S.  356,  6  Sup.  Ct.  1064,  30 
L.  ed.  220.  And  see  Metropolis  T.  Co.  v.  Chicago  (1913)  228  U.  S.  61,  69, 
70,  33  Sup.  Ct.  441,  443,  57  L.  ed.  730;  Quong  Wing  v.  Kirkendall  (1912)  223 
U.  S.  59,  62,  32  Sup.  Ct.  192,  193,  56  L.  ed.  350;  Mutual  L.  Co.  v.  Martell 
(1911)  222  U.  S.  225,  234,  32  Sup.  Ct.  74,  75,  56  L.  ed.  175;  Chicago,  R.  L 
&  P.  Ry.  Co.  V.  Arkansas  (1911)  219  U.  S.  453,  465,  466,  31  Sup.  Ct.  275, 
279,  55  L.  ed.  290;  Bailey  v.  Alabama  (1911)  219  U.  S.  219,  238,  31  Sup. 
Ct.  145,  150,  55  L.  ed.  191;  Hodgson  v.  Vermont  (1897)  168  U.  S.  262,  272, 
18  Sup.  Ct.  80,  83,  42  L.  ed.  461;  Missouri  P.  Ry.  Co.  v.  Humes  (1885)  115 
U.  S.  512,  519,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463;  Barbier  v.  Connolly 
(1885)  113  U.  S.  27,  31,  5  Sup.  Ct.  357,  359,  28  L.  ed.  923;  United  States 
V.  Cruikshank  (1875)  92  U.  S.  542,  554,  23  L.  ed.  588;  Hammond  P.  Co.  v. 
Arkansas  (1909)  212  U.  S.  322,  341,  346,  347,  29  Sup.  Ct.  370,  376,  378, 
53  L.  ed.  530;  Welch  v.  Swasey   (1909)   214  U.  S.  91,  105,  29  Sup.  Ct.  667, 


KEASONABLENESS.  211 

This  position  requires  careful  examination,  for  it  is  in- 
consistent with  numerous  decisions  by  the  court  that  it 
has  no  constitutional  right  to  inquire  into  the  wisdom  or 
justice  of  acts  by  other  organs  of  the  federal  government 
or  by  the  states  or  their  organs  of  government;  ^^^  and 
if  followed  out  it  would  place  almost  unlimited  power  in 
the  hands  of  the  federal  judiciary,  and  under  it  the  Four- 
teenth Amendment  would  radically  change  the  relations 
which  before  its  adoption  existed  between  the  state  and 
federal  governments  and  between  both  governments  and 
the  people."^ 

570,  53  L.  ed.  923;  and  the  following  cases  which  deal  with  the  question  of 
procedure:  Bank  of  Columbia  v.  Okely  (1819)  4  Wheat.  235,  244,  4  L.  ed. 
559;  Caldwell  v.  Texas  (1891)  137  U.  S.  692,  697,  698,  11  Sup.  Ct.  224, 
226,  34  L.  ed.  816;  Kentucky  U.  Co.  v.  Kentucky  (1911)  219  U.  S.  140, 
161,  31  Sup.  Ct.  171,  180,  55  L.  ed.  137;  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnip- 
seed  (1910)  219  U.  S.  35,  43,  31  Sup.  Ct.  136,  138,  55  L.  ed.  78;  concur- 
ring opinion  in  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  107,  24  L.  ed. 
616.  On  Bank  of  Columbia  v.  Okely,  supra,  see  24  Harv.  L.  Rev.  476,  note. 
With  the  cases  in  the  present  note  compare  Flint  v.  Stone  Tracy  Co.  (1911) 
220  U.  S.  107,  158,  31  Sup.  Ct.  342,  352,  55  L.  ed.  389. 

115  See  notes  83,  supra,  and  76  in  Chap.  3,  supra. 

116  The  court  has  declared,  in  cases  cited  in  note  51,  supra,  that  the 
Amendment  did  not  bring  about  such  a  change. — As  was  said  by  Knox,  J., 
in  his  separate  opinion  in  Sharpless  v.  Mayor  of  Philadelphia  (1853)  21 
Pa.  St.  147,  186,  187,  "There  is,  to  my  mind,  great  danger  in  recognizing 
the  existence  of  a  power  in  the  judiciary  to  annul  legislative  action,  with- 
out some  fixed  rule  by  which  such  power  is  to  be  measured.  Our  opinions 
are  so  diversified  and  varied,  that  what  to  one  mind  may  seem  clearly  right 
and  proper,  to  another  will  appear  to  be  fraught  with  imminent  danger. 
If  we  have  not  a  certain  standard  by  which  to  test  the  constitutionality  of 
legislative  enactments;  if  each  judge  is  to  be  governed  by  his  own  convic- 
tions of  what  is  right  or  otherwise,  I  fear  that  restraints  upon  judicial, 
rather  than  upon  legislative  action,  will  be  demanded  by  a  people  ever 
jealous  of  the  accumulation  of  power  in  the  hands  of  the  few."  Cliflford, 
J.,  dissenting,  said  in  Loan  Assn.  v.  Topeka  (1874)  20  Wall.  655,  669,  22 
L.  ed.  455,  "Courts  cannot  nullify  an  act  of  the  state  legislature  on  the 
vague  ground  that  they  think  it  opposed  to  a  general  latent  spirit  supposed 
to  pervade  or  underlie  the  constitution,  where  neither  the  terms  nor  the 
implications  of  the  instrument  disclose  any  such  restriction.  Such  a  power 
is  denied  to  the  courts,  because  to  concede  it  would  be  to  make  the  courts 


212  DUE  PROCESS  CLAUSES— DISCUSSION. 

Unnecessary  governmental  action. 

106.  The  court  has  also  said  or  suggested  in  several 
cases  that  it  may  pass  upon  the  necessity  for  legisla- 
tive ^^^  or  administrative^  ^'^  action,  although  such  state- 
ments and  suggestions  also  are  clearly  inconsistent  with 
the  position  which  the  court  has  taken  in  other  cases.^^*^ 

sovereign  over  both  the  constitution  and  the  people,  and  convert  the  govern- 
ment into  a  judicial  despotism."  See  also  Boudin,  Government  by  Judi- 
ciary, 20  Pol.  Sci.  Quar.  238,  especially  latter  part  of  that  article,  and  note 
73  in  Chapter  3,  supra. 

liTLochner  v.  New  York  (1905)  198  U.  S.  45,  56,  25  Sup.  Ct.  539,  543, 
49  L.  ed.  937;  Lawton  v.  Steele  (1894)  152  U.  S.  133,  137,  14  Sup.  Ct.  499, 
501,  38  L.  ed.  385;  House  v.  Mayes  (1911)  219  U.  S.  270,  282,  284,  285,  31 
Sup.  Ct.  234,  236,  237,  55  L.  ed.  213;  Welch  v.  Swasey  (1909)  214  U.  S. 
91,  105,  29  Sup.  Ct.  567,  570,  53  L.  ed.  923;  Brodnax  v.  Missouri  (1911) 
219  U.  S.  285,  292,  293,  31  Sup.  Ct.  238,  239,  55  L.  ed.  219;  Engel  v.  O'Mal- 
ley  (1911)  219  U.  S.  128,  136,  31  Sup.  Ct.  190,  192,  55  L.  ed.  128;  Noble 
State  Bank  v.  Haskell  (1911)  219  U.  S.  104,  113,  31  Sup.  Ct.  186,  189,  55 
L.  ed.  112;  California  R.  Co.  v.  Sanitary  R.  Works  (1905)  199  U.  S.  306, 
318,  26  Sup.  Ct.  100,  103,  50  L.  ed.  204;  Gardner  v.  Michigan  (1905)  199 
U.  S.  325,  332,  333,  26  Sup.  Ct.  106,  109,  50  L.  ed.  212;  Jacobson  v.  Massa- 
chusetts (1905)  197  U.  S.  11,  28,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643; 
Gundling  v.  Chicago  (1900)  177  U.  S.  183,  188,  20  Sup.  Ct.  633,  635,  44  L. 
ed.  725. 

118  Washington  ex  rel.  Oregon  R.  &  N.  Co.  v.  Fairchild  (1912)  224  U.  S. 
510,  32  Sup.  Ct.  535,  56  L.  ed.  863. 

119  In  McCulloch  v.  Maryland  (1819)  4  Wheat.  316,  423,  4  L.  ed.  579, 
without  reference  to  the  Fifth  Amendment,  Marshall,  C.  J.,  says  concern- 
ing legislation  by  Congress,  which  differs  from  state  legislatures  in  that  it 
has  only  powers  expressly  or  impliedly  granted,  that  "where  the  law  is  not 
prohibited,  and  is  really  calculated  to  effect  any  of  the  objects  entrusted 
to  the  government,  to  undertake  here  to  inquire  into  the  degree  of  its  neces- 
sity, would  be  to  pass  the  line  which  circumscribes  the  judicial  department, 
and  to  tread  on  legislative  ground."  And  in  Oceanic  Nav.  Co.  v.  Stranahan 
(1909)  214  U.  S.  320,  340,  29  Sup.  Ct.  671,  676,  53  L.  ed.  1013,  the  court, 
by  White,  J.,  speaks  of  "the  assumption  that  it  is  within  the  competency 
of  judicial  authority  to  control  legislative  action  as  to  subjects  over  which 
there  is  complete  legislative  authority,  on  the  theory  that  there  was  no 
necessity  calling  for  the  exertion  of  legislative  power.  .  .  .  The  con- 
stitutional right  of  Congress  to  enact  such  legislation  is  the  sole  measure 
by  which  its  validitj'  is  to  be  determined  by  the  courts.  The  suggestion  that 
if  this  view  be  applied  gi-ave  abuses  may  arise  from  the  mistaken  or  wrong- 
ful exertion  by  the  legislative  department  of  its  authority  but  intimates 


REASONABLENESS.  213 

Nature  of  opinions  upon  these  subjects. 

107.  In  support  of  these  positions  of  tlie  court  there  is 
very  little  reasoning  expressed  in  the  opinions,  but  from 
citations  and  quotations  in  a  number  of  those  opinions  it 
seems  clear  that  the  court  is  often  basing  such  decisions 
under  the  due  process  clauses  upon  other  lines  of  decision 
which  the  court  deems  to  be  either  directly  in  point  or 
else  analogous.  We  shall,  therefore,  inquire  into  the 
bearing  of  those  other  lines  of  decision  upon  the  ques- 
tions under  consideration. 

Relevancy  of  decisions  on  reasonableness  of  ordinances. 

108.  Let  us  first  note  that  the  fact  that  English  courts 
and  those  which  applied  state  law  ^^^  have  declared  in- 

that  if  the  legislative  power  be  permitted  its  full  sway  within  its  constitu- 
tional sphere,  harm  and  wrong  will  follow,  and  therefore  it  behooves  the 
judiciary  to  apply  a  corrective  by  exceeding  its  own  authority.  But  as  was 
pointed  out  in  Gary  v.  Curtis  (1845)  3  How.  236,  11  L.  ed.  576,  and  as  has 
been  often  since  emphasized  by  this  court  (McCray  v.  United  States  (1904) 
195  U.  S.  27,  24  Sup.  Ct.  769,  49  L.  ed.  78),  the  proposition  but  mistakenly 
assumes  that  the  courts  can  alone  be  safely  entrusted  with  power,  and  that 
hence  it  is  their  duty  to  unlawfully  exercise  prerogatives  which  they  have 
no  right  to  exert,  upon  the  assumption  that  wrong  must  be  done  to  pre- 
vent wrong  being  accomplished."  See  also  District  of  Columbia  v.  Brooke 
(1909)  214  U.  S.  138,  150,  29  Sup.  Ct.  560,  563,  53  L.  ed.  941;  The  Lottery 
Case— Champion  v.  Ames  ( 1903 )  188  U.  S.  321,  358,  23  Sup.  Ct.  321,  327,  328, 
47  L.ed.492;  United  States  v.  Chandler-Dunbar  Co.  (1913)  229  U.  S.  53,  62, 
33  Sup.  Ct.  667,  672,  57  L.  ed.  1063;  McDermott  v.  Wisconsin  (1913)  228  U. 
S.  115,  128,  33  Sup.  Ct.  431,  433,  57  L.  ed.  754;  Hoke  v.  United  States 
(1913)  227  U.  S.  308,  323,  33  Sup.  Ct.  281,  284,  57  L.  ed.  523;  Mutual  L. 
Co.  V.  Martell  (1911)  222  U.  S.  225,  233,  234,  32  Sup.  Ct.  74,  75,  56  L.  ed. 
175;  Weems  v.  United  States  (1910)  217  U.  S.  349,  378,  30  Sup.  Ct.  544, 
553,  54  L.  ed.  793;  Twining  v.  New  -Jersey  (1908)  211  U.  S.  78,  106,  29  Sup. 
Ct.  14,  22,  53  L.  ed.  97;  Minneapolis,  St.  P.  &  S.  S.  M.  R.  Co.  v.  Railroad 
Comn.  of  Wisconsin  (1908)  136  Wis.  146,  160,  116  N.  W.  905,  910,  17  L.  R. 
A.  N.  S.  821,  829;  and  cases  cited  in  note  83,  supra,  and  note  213,  infra. 
Compare  United  States  v.  Joint  T.  Assn.  (1898)  171  U.  S.  505,  571,  19  Sup. 
Ct.  25,  32,  43  L.  ed.  259,  where  the  statement  of  the  court  is  inconclusive; 
and  note  in  17  L.  R.  A.  838. 

120 1,  e.,  state  courts  and  also  federal  courts  when  the  latter  acquired 
jurisdiction  by  reason  of  the  diverse  citizenship  of  the  parties. 


214  DUE  PROCESS  CLAUSES— DISCUSSION. 

valid  ordinances  which,  the  municipalities  were  not  ex- 
pressly empowered  to  make  which  the  courts  considered 
unreasonable  ^^^  does  not  justify  the  Federal  Supreme 
Court  in  inquiring  into  the  reasonableness  of  an  ordi- 
nance upon  appeal  from  a  state  court/-^  nor  does  it  by 
itself  show  anything  as  to  the  bearing  of  the  due  process 
provision  upon  legislation.  It  has  not  been  shown,  by 
reference  to  those  clauses  or  to  any  other  clauses,  that  the 
men  who  adopted  the  Federal  Constitution  sought  to 
place  Congress  in  the  same  relation  to  the  federal  judici- 
ary as  municipal  governments  stood  towards  the  local 
courts;  ^22  and  they  certainly  did  not  place  the  state  legis- 
latures in  that  position;  for  while  Congress  is  somewhat 
like  such  municipal  governments  in  that  it  possesses  only 

121  See  Dillon,  Municipal  Corporationa,  5th  ed.,  sec.  589  et  seq. ;  Mc- 
Quillin,  Municipal  Ordinances,  sec.  181  et  seq.;  McQuillin,  Municipal  Cor- 
porations, sec.  724  et  seq.;  Paul  v.  Gloucester  County  (1888)  50  N.  J.  L, 
585,  600,  15  Atl.  272,  279,  1  L.  R.  A.  86;  New  0.  &  N.  W.  R.  Co.  v.  Vidalia 
(1906)  117  La.  560,  42  So.  139,  and  also  People  v.  Daniels  (1889)  6  Utah, 
288,  292,  293,  22  Pac.  159,  160,  5  L.  R.  A,  444,  which  points  out  that  terri- 
tories are  in  the  same  position  as  municipalities  in  this  respect.  It  seems 
that  originally  the  rule  was  a  qualification  to  the  admission  that  munici- 
palities possessed  implied  powers,  and  was  not  a  limitation  concerning  the 
propriety  of  exercises  of  express  powers,  and  that  the  extent  to  which  the 
rule  is  at  present  frequently  applied  in  this  country  is  due  to  later  usurpa- 
tions of  power  by  the  courts. 

122  Railroad  Co.  v.  Richmond  (1877)  96  U.  S.  521,  528,  24  L.  ed.  734. 
Consider,  however,  the  character  of  the  citations  in  Jacobson  v.  Massachu- 
setts (1905)  197  U.  S.  11,  28,  25  Sup.  Ct.  358,  362,  49  L.  ed.  643;  and  see 
Yick  Wo  V.  Hopkins  (1886)  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  ed.  220; 
and  dissenting  opinion  in  Slaughter  House  Cases  (1872)  16  Wall.  36,  108, 
21  L.  ed.  394.  Acts  by  municipalities  which  are  in  excess  of  authority  from 
the  state  do  not  for  that  reason  violate  the  due  process  provision:  Owens- 
boro  W.  Co.  V.  Owensboro  (1906)  200  U.  S.  38,  26  Sup.  Ct.  249,  50  L.  ed. 
361.  The  United  States  Supreme  Court  declares  that  it  is  its  duty  to  follow 
the  interpretations  which  have  been  given  to  the  state  constitutions  and 
the  state  statutes  by  the  state  courts:  see  notes  45-47  in  Chapter  3,  supra. 

123  Had  they  done  so,  it  seems  that  the  rule  would  have  related  only  to 
the  implied  powers  of  Congress.  On  the  power  of  Congress  see  also  note 
13  in  Chapter  2,  supra. 


REASONABLENESS.  215 

powers  which  have  been  bestowed  upon  it,  expressly  or 
inipliedly,^^^  a  state  legislature  has  all  powers  not  de- 
nied to  it  by  the  federal  or  state  constitution/^^  and  the 
state  itself,  in  adopting  a  constitution,  has  all  powers  not 
denied  to  it  by  the  Federal  Constitution.^^^ 

It  is  possible  that  the  decisions  concerning  the  reason- 
ableness of  ordinances  may  show  by  way  of  analogy  that 
the  appropriate  courts  may  pass  upon  the  reasonableness 
of  administrative  regulations  under  some  circumstances, 
deiDcnding  upon  the  terms  of  the  grant  of  power  to  the  ad- 
ministrative organ.  But  those  decisions  do  not  seem  to 
have  any  bearing  whatever  upon  state  or  federal  legisla- 
tion. 

Reasonable  exercises  of  police  power. 

109.  The  court  has  also  said  that  in  view  of  the  due 
process  provision  a  governmental  action  cannot  be  a.  valid 
exercise  of  the  police  power  unless  it  is  reasonable;  ^^'^ 
and  in  reaching  this  conclusion  it  has  referred  to  cases 

124  See  note  11  in  Chapter  2,  supra. 

125  See  note  10  in  Chapter  2,  supra. 

126  See  City  of  New  York  v.  Miln  (1837)  11  Pet.  102,  139,  9  L.  ed.  648; 
Martin  v.  Hunter's  Lessee  (1816)  1  Wheat.  304,  325,  4  L.  ed.  97;  Sturges 
V.  Crowninshield  (1819)  4  Wheat.  122,  192,  193,  4  L.  ed.  529;  Sutherland, 
Notes  on  the  United  States  Constitution,  677. 

127  Eubank  v.  Richmond  (1912)  226  U.  S.  137,  144,  33  Sup.  Ct.  76,  77, 
57  L.  ed.  156;  Lochner  v.  New  York  (1905)  198  U.  S.  45,  53,  56,  25  Sup. 
Ct.  539,  541,  543,  49  L.  ed.  937;  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899) 
173  U.  S.  684,  689,  691,  19  Sup.  Ct.  565,  567,  568,  43  L.  ed.  858;  House  v. 
Mayes  (1911)  219  U.  S.  270,  282,  31  Sup.  Ct.  234,  236,  55  L.  ed.  213; 
Chicago,  B.  &  Q.  Ey.  Co.  v.  People  (1906)  200  U.  S.  561,  592,  593,  26  Sup. 
Ct.  341,  350,  50  L.  ed.  596;  New  York  v.  Hesterberg  (1908)  211  U.  S.  31, 
39,  29  Sup.  Ct.  10,  12,  53  L.  ed.  75.  See  also  McLean  v.  Arkansas  (1909) 
211  U.  S.  539,  547,  29  Sup.  Ct.  206,  208,  53  L.  ed.  315;  Welch  v.  Swasey 
(1909)  214  U.  S.  91,  105,  29  Sup.  Ct.  567,  570,  53  L.  ed.  923;  Jacobson  v. 
Massachusetts  (1905)  197  U.  S.  11,  25,  28,  25  Sup.  Ct.  358,  361,  362,  49  L. 
ed.  643;  Gundling  v.  Chicago  (1900)  177  U.  S.  183,  188,  20  Sup.  Ct.  633, 
635,  44  L.  ed.  725;  Holden  v.  Hardy  (1898)  169  U.  S.  366,  392,  395,  398,  18 
Sup.  Ct.  383,  388,  389,  390,  42  L.  ed.  780;  Lawton  v.  Steele   (1894)    152  U. 


216  DUE  PROCESS  CLAUSES— DISCUSSION. 

which  arose  under  other  provisions  of  the  Constitution 
and  in  which  it  had  considered  the  occasion  for  govern- 
mental action  in  order  to  determine  therefrom  whether 
such  action  were  within  the  police  power  of  a  state.^^** 
Such  references  to  decisions  under  other  provisions  of  the 
Constitution  are  in  point  if  the  term  ''police  power"  is 
used  in  the  same  sense  in  all  cases.^-^ 

Meaning  of  term  ** police  power." 

110.  In  the  cases  which  arose  under  other  provisions  of 
the  Constitution  the  term  ''police  power"  is  apparently- 
used  to  denote  a  power  the  existence  of  which  limits  the 
scope  of  provisions  of  the  Federal  Constitution.  The 
court  recognizes  the  fact  that  it  cannot  carry  out  a  con- 
stitution "with  mathematical  nicety  to  logical  ex- 
tremes. ' '  ^^^    It  does  not  always  interpret  stringently  the 

S.  133,  137,  14  Sup.  Ct.  499,  501,  38  L.  ed.  385;  German  A.  Ins.  Co.  v. 
Hale  (1911)   219  U.  S.  307,  316,  31  Sup.  Ct.  246,  248,  55  L.  ed.  229. 

128  Note  the  references  in  the  following  cases  which  arose  under  the  due 
process  provision  to  cases  which  were  decided  under  other  provisions  of  the 
Constitution:  Lawton  v.  Steele  (1894)  152  U.  S.  133,  137,  14  Sup.  Ct. 
499,  501,  38  L.  ed.  385;  German  A.  Ins.  Co.  v.  Hale  (1911)  219  U.  S.  307, 
316,  317,  31  Sup.  Ct.  246,  248,  55  L.  ed.  229;  California  R.  Co.  v.  Sanitary 
R.  Works  (1905)  199  U.  S.  306,  318,  319,  26  Sup.  Ct.  100,  103,  50  L.  ed. 
204;  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  11,  25,  28,  25  Sup.  Ct. 
358,  361,  362,  49  L.  ed.  643;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200 
U.  S.  561,  584,  585,  26  Sup.  Ct.  341,  346,  50  L.  ed.  596. 

129  But  see  Hand,  The  Commodities  Clause  and  the  Fifth  Amendment, 
22  Harv.  L.  Rev.  250,  259;  Blayney,  The  Term  "Police  Power,"  59  Cent.  L. 
J.  486,  489. 

1.30  "You  cannot  cany  a  constitution  out  with  mathematical  nicety  to  log- 
ical extremes.  If  you  could,  we  should  never  have  heard  of  the  police 
power:"  Paddell  v.  New  York  (1908)  211  U.  S.  446,  450,  29  Sup.  Ct.  139, 
140,  53  L.  ed.  275.  See  also  Noble  State  Bk.  v.  Haskell  (1911)  219  U.  S.  104, 
110,  31  Sup.  Ct.  186,  187,  55  L.  ed.  112;  Hudson  C.  W.  Co.  v.  McCarter 
(1908)  209  U.  S.  349,  355,  357,  28  Sup.  Ct.  529,  531,  532,  52  L.  ed.  828;  Dan- 
forth  V.  Groton  W.  Co.  (1901)  178  Mass.  472,  476,  477,  59  N.  E.  1033, 
1034;  Dunbar  v.  Boston  &  P.  R.  Co.  (1902)  181  Mass.  383,  63  N.  E. 
916.     Holmes,  J.,  speaking  for  himself,  said  in  Interstate  C.  S.  Ry.  Co.  v. 


REASONABLENESS.  217 

limitations  upon  state  action  which  are  contained  in 
the  Federal  Constitution.^  ^^  Instead  of  so  doing,  it  in- 
quires into  the  character  of  the  legislation  and  it  says 

Commonwealth  (1907)  207  U.  S.  79,  86,  87,  28  Sup.  Ct.  26,  27,  52  L.  ed.  Ill, 
"I  hesitatingly  agree  with  the  state  court  that  the  requirement  may  be  jus- 
tified under  what  commonly  is  called  the  police  power.  The  obverse  way  of 
stating  this  power  in  the  sense  in  which  I  am  using  the  phrase  would  be 
that  constitutional  rights  like  others  are  matters  of  degree  and  that  the 
great  constitutional  provisions  for  the  protection  of  property  are  not  to  be 
pushed  to  a  logical  extreme,  but  must  be  taken  to  permit  the  infliction  of 
some  fractional  and  relatively  small  losses  without  compensation,  for  some 
at  least  of  the  purposes  of  wholesome  legislation."  See  also  cases  there 
cited;  notes  17,  22  in  Chapter  5,  infra;  note  98,  supra. 

131  The  court,  in  cases  arising  under  the  impairment  of  contract  clause, 
has  declared  that,  in  spite  of  supposed  contracts,  a  state  may  enact  legis- 
lation to  secure  the  safety  or  to  protect  the  health  or  the  morals  of  its  citi- 
zens: Texas  &  N.  0.  R.  Co.  v.  Miller  (1911)  221  U.  S.  408,  414,  31  Sup.  Ct. 
534,  535,  55  L.  ed.  789;  Northern  P.  Ry.  Co.  v.  State  (1908)  208  U.  S.  583, 
596,  597,  598,  28  Sup.  Ct.  341,  345,  346,  52  L.  ed.  630;  and  cases  cited  there 
and  in  Patterson,  The  United  States  and  the  States  Under  the  Constitution, 
2d  ed.,  p.  178.  And  the  court  for  a  long  time  held,  and  to  some  extent  still 
holds,  that  the  state  may  enact  such  and  similar  legislation,  although  it 
affects  interstate  commerce,  where  Congress  has  not  expressly  shown  a  de- 
termination that  the  commerce  should  be  free  from  state  regulation:  Chi- 
cago, R.  I.  &  P.  Ry.  Co.  v.  Arkansas  (1911)  219  U.  S.  453,  31  Sup.  Ct.  275, 
55  L.  ed.  290;  and  cases  cited  there  and  in  Patterson,  ubi  supra,  chap.  4; 
see  also  Second  Employers'  Liability  Cases — Mondou  v.  New  Y.,  N.  H.  &  H. 
R.  Co.  (1912)  223  U.  S.  1,  54,  55,  32  Sup.  Ct.  169,  177,  56  L.  ed.  327;  com- 
pare Adams  Ex.  Co.  v.  Kentucky  (1909)  214  U.  S.  218,  222,  29  Sup.  Ct.  633, 
634,  53  L.  ed.  972;  Leisy  v.  Hardin  (1890)  135  U.  S.  100,  10  Sup.  Ct.  681, 
34  L.  ed.  128.  So  also  it  has  said  that  in  spite  of  the  impairment  of  con- 
tract clause  a  state  may  make  changes  in  statutes  of  limitation  affecting 
existing  rights  of  action  if  the  time  allowed  before  the  bar  takes  effect  is 
not  palpably  unreasonable:  Terry  v.  Anderson  (1877)  95  U.  S.  628,  24  L. 
ed.  365;  see  also  Kentucky  U.  Co.  v.  Kentucky  (1911)  219  U.  S.  140,  156, 
157,  31  Sup.  Ct.  171,  178,  55  L.  ed.  137.  While  the  court  holds  that  the 
equal  protection  provision  protects  against  discriminatory  legislation,  it  also 
holds  that  a  state  in  legislating  may  make  classifications  which  are  not  unrea- 
sonable: Halter  v.  Nebraska  (1907)  205  U.  S.  34,  27  Sup.  Ct.  419,  51  L.  ed. 
696;  Bacon  v.  Walker  (1907)  204  U.  S.  311,  27  Sup.  Ct.  289,  51  L.  ed.  499; 
St.  Mary's  F.-A.  P.  Co.  v.  West  Virginia  (1906)  203  U.  S.  183,  27  Sup.  Ct. 
132,  51  L.  ed.  144;  Campbell  v.  California  (1906)  200  U.  S.  87,  95,  26  Sup. 
Ct.  182,  185,  50  L.  ed.  382;  Plessy  v.  Ferguson  (1896)  163  U.  S.  537,  550, 
16  Sup.  Ct.  1138,  1143,  41  L.  ed.  256;  and  see  Second  Employers'  Liability 
Cases— Mondou  v.  New  Y.,  N.  H.  &  H.  R.  Co.  (1912)  223  U.  S.  1,  52,  53,  32 


218  DUE  PROCESS  CLAUSES— DISCUSSION. 

that  the  legislation  which  it  upholds  is  within  the  police 
power  of  the  state. 

But  the  term  "police  power"  is  also  used  in  a  broader 
sense  to  denote  all  the  power  of  government  which  the 
states  did  not  expressly  or  impliedly  ^^"  surrender  by  the 
adoption  of  the  Federal  Constitution,  a  power  which  has 
no  bounds  except  those  imposed  by  the  Federal  Constitu- 
tion.^ ^^ 

Sup.  Ct.  169,  176,  56  L.  ed.  327. — On  the  subject  of  this  note  see  also  Martin  v. 
District  of  Columbia  (1907)  205  U.  S.  135,  139,  27  Sup.  Ct.  440,  441,  51  L. 
ed.  743;  Allen  v.  Riley  (1906)  203  U.  S.  347,  27  Sup.  Ct.  95,  51  L.  ed.  216; 
Woods  V.  Carl  (1906)  203  U.  S.  358,  27  Sup.  Ct.  99,  51  L.  ed.  219;  Railroad 
Co.  V.  Fuller  (1873)  17  Wall.  560,  567,  568,  21  L.  ed.  710;  Escanaba  &  L.  M. 
T.  Co.  V.  Chicago  (1882)  107  U.  S.  678,  2  Sup.  Ct.  185,  27  L.  ed.  442;  Lake 
S.  &  M.  S.  Ry.  Co.  V.  Ohio  (1899)  173  U.  S.  285,  19  Sup.  Ct.  465,  43  L.  ed. 
702;  Territory  of  New  Mexico  v.  Denver  &  R.  G.  R.  Co.  (1906)  203  U.  S.  38, 
55,  27  Sup.  Ct.  1,  5,  51  L.  ed.  78;  Asbell  v.  Kansas  (1908)  209  U.  S.  251,  28 
Sup.  Ct.  485,  52  L.  ed.  778;  Morgan's  S.  Co.  v.  Louisiana  (1886)  118  U.  S. 
455,  462,  464,  6  Sup.  Ct.  1114,  1117,  1119,  30  L.  ed.  237;  Louisville  &  N.  R. 
Co.  V.  Kentucky  (1896)  161  U.  S.  677,  695,  16  Sup.  Ct.  714,  721,  40  L.  ed. 
849;  New  York  v.  Hesterberg  (1908)  211  U.  S.  31,  29  Sup.  Ct.  10,  53  L.  ed. 
75.  Compare  North  Dakota  v.  Hanson  (1910)  215  U.  S.  515,  525,  30  Sup. 
Ct.  179,  183,  54  L.  ed.  307. 

132  For  example,  the  court  holds  that  the  grant  to  Congress  of  power 
over  interstate  commerce  constitutes  a  restraint  upon  the  state  govern- 
ments:  see  sees.  3,  7,  supra. 

13^  See  Noble  State  Bank  v.  Haskell  (1911)  219  U.  S.  104,  111,  31  Sup.  Ct. 
186,  188,  55  L.  ed.  112;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200  U.  S. 
561,  592,  26  Sup.  Ct.  341,  349,  50  L.  ed.  596;  New  0.  G.  Co.  v.  Louisiana  L. 
Co.  (1885)  115  U.  S.  650,  661,  662,  6  Sup.  Ct.  252,  258,  29  L.  ed.  516;  Li- 
cense Cases  (1847)   5  How.  504,  583,  12  L.  ed.  256;  House  v.  Mayes  (1911) 

219  U.  S.  270,  282,  31  Sup.  Ct.  234,  236,  55  L.  ed.  213;  German  A.  I.  Co.  v. 
Hale  (1911)  219  U.  S.  307,  317,  31  Sup.  Ct.  246,  248,  55  L.  ed.  229;  Keller 
v.  United  States  (1909)  213  U.  S.  138,  29  Sup.  Ct.  470,  53  L.  ed.  737;  Ba- 
con V.  Walker  (1907)  204  U.  S.  311,  317,  27  Sup.  Ct.  289,  291,  51  L.  ed.  499; 
Halter  v.  Nebraska  (1907)  205  U.  S.  34,  40,  41,  27  Sup.  Ct.  419,  421,  51  L. 
ed.  696;  Cincinnati,  I.  &  W.  Ry.  Co.  v.  Connersville  (1910)  218  U.  S.  336, 
344,  31  Sup.  Ct.  93,  95,  54  L.  ed.  1060;  Northwestern  N.  L.  I.  Co.  v.  Riggs 
(1906)  203  U.  S.  243,  253,  27  Sup.  Ct.  126,  128,  51  L.  ed.  168;  Western  T. 
Assn.  v.  Grcenberg  (1907)  204  U.  S.  359,  363,  27  Sup.  Ct.  384,  386,  51  L.  ed. 
520;  Mutual  L.  Assn.  v.  Martell  (1911)  222  U.  S.  225,  233,  32  Sup,  Ct. 
74,  75,  56  L.  ed.  175;  and  notes  126,  supra,  and  10  in  Chap.  2,  supra.  The 
term  is  also  used  to  denote  the  residuary  sovereignty  of  the  state  minus 


REASONABLENESS.  219 

Relevancy  of  decisions  on  police  power. 

111.  And,  of  course,  the  fact  that  the  court  has  inquired 
whether  legislation  was  within  the  police  power  of  the 
state,  as  that  term  is  used  in  its  narrower  significance, 
does  not  necessarily  show  that  the  court  should  inquire 
into  the  necessity  or  propriety  of  legislation  in  all  cases. 
The  decisions  concerning  the  police  power  to  which  we 
have  referred  and  in  which  the  term  is  used  in  its  nar- 
rower sense  do  not  justify  the  court  in  inquiring  into  the 
character  of  legislation  and  naming  instances  in  which  it 
will  and  instances  in  which  it  will  not  permit  legislation, 
unless  some  express  or  implied  restraints  upon  govern- 
mental action  are  involved. ^^^ 

Those  decisions  may  well  be  in  point  in  cases  arising 
under  the  due  process  clauses  in  which  questions  of  pro- 
cedure are  involved.  They  may  show  the  degree  of  strict- 
ness with  which  that  provision  of  the  Constitution  should 
be  enforced.  But  before  we  can  say  that  they  are  in  point 
in  cases  where  the  due  process  provision  is  invoked  in 
controversies  concerning  questions  of  substantive  law  we 
must  first  show  that  if  stringently  applied  the  provision 
might  be  given  a  sweeping  effect  and  held  to  provide 
broadly  that  the  legislature  may  not  cause  any  person  to 
lose  his  life,  liberty  or  property.  If  we  could  say  that,  the 
decisions  to  which  we  have  referred  would  seem  to  show 
by  way  of  analogy  that  the  due  process  provision  was  not 
to  be  applied  stringently  where  in  the  opinion  of  the  court 

such  ordinary  powers  as  by  constant  use  have  acquired  a  separate  identity 
and  a  definite  name,  as  "taxation,"  "eminent  domain,"  etc.:  Hastings,  Po- 
lice Power  of  the  State,  39  Proc.  Am.  Phil.  Soc.  405,  414. 

134  In  support  of  this  statement  see  Schollenberger  v.  Pennsylvania  ( 1898 ) 
171  U.  S.  1,  16,  18  Sup.  Ct.  757,  763,  43  L.  ed.  49,  and  note  119,  supra. 
But  with  this  statement  contrast  the  cases  cited  in  note  128,  supra,  and  the 
character  of  the  citations  in  the  opinions  in  those  cases,  and  also  note  117, 
supra. 


220  DUE  PEOCESS  CLAUSES— DISCUSSION. 

the  legislature  was  properly  guarding  the  welfare  of  the 
citizens. 

Did  those  who  adopted  the  clauses  intend  that  as  a  gen- 
eral rule  they  should  have  such  an  effect?  Did  they  in- 
tend to  forbid  the  legislature  to  change  rules  of  law? 
Such  a  change  usually  affects  rights  which  persons  pos- 
sessed before  the  law  was  enacted;  and  it  affects  them 
without  any  prior  judicial  proceedings.  Compliance  with 
the  law  may  mean  a  recognition  that  rights  have  already 
been  altered;  and  the  enforcement  of  the  law  has  that 
meaning.  Are  the  due  process  clauses  violated  when 
.changes  in  the  rights  which  persons  theretofore  possessed 
are  made  before  there  have  been  judicial  proceedings  and 
the  judiciary  is  called  upon  simply  to  recognize  and  en- 
force the  changes  in  the  law  I 

Is  a  change  of  law  a  ** deprivation"? 

112.  It  is  true  that  as  a  general  rule  the  government 
may  not  lay  a  heavy  hand  upon  a  person  until  he  has  had 
his  day  in  court.  But  it  does  not  follow  that  the  rules  of 
law  which  the  court  is  to  apply  are  to  be  determined  then 
for  the  first  time  or  that  they  must  be  made  by  that  tri- 
bunal. On  the  contrary,  we  know  that  those  who  adopted 
the  Amendments  intended  that  as  a  general  rule  govern- 
mental commands  should  be  made  and  enforced  by  dif- 
ferent organs  of  government— an  intention  which  was 
shown  by  their  custom  of  distributing  the  governmental 
powers,  both  of  the  federal  and  of  the  several  state  gov- 
ernments, among  three  departments  of  government.  The 
custom  of  so  distributing  governmental  powers  was  so 
general  and  continued  for  so  long  a  time  after  the  adop- 
tion of  the  due  process  provision  that  we  cannot  readily 
adopt  a  construction  of  the  due  process  provision  which 


REASONABLENESS.  221 

is  inconsistent  with  that  custom.  We  must  recognize  the 
power  of  the  legislature  to  make  rules  of  law.  And  the 
power  to  make  the  law  includes  the  power  to  change  the 
law. 

On  the  other  hand,  those  who  adopted  the  constitu- 
tions clearly  intended  that  the  power  to  enforce  the  law 
should  not  include  the  power  to  pass  upon  legislative 
questions.  We  have  already  seen  that  there  is  nothing 
in  the  suggestion  that  governmental  commands  when 
made  otherwise  than  by  the  tribunal  which  is  to  enforce 
them  are  subject  to  tests  similar  to  those  which  in  the  ab- 
sence of  legislation  that  tribunal  would  apply  to  the  acts 
of  individuals.^ ^^  The  legislature  may  unquestionably 
change  the  law;  ^^^  and  when  it  does  so  it  is  the  clear  and 
inevitable  duty  of  the  courts  to  enforce  the  law  as  en- 
acted by  the  legislature  unless  that  law  violates  the  Con- 
stitution. 

Moreover,  as  we  shall  see  later  on,^^^  there  are  strong 
reasons  for  the  opinion  that  the  due  process  provision  re- 
fers merely  to  those  deprivations  which  are  usually 
made  by  way  of  punishment.  And  the  establishment  of  a 
rule  of  law  could  hardly  be  considered  the  making  of  such 
a  deprivation. 

Summary  as  to  police  power. 

113.  In  short,  it  cannot  be  said  that  as  a  general  rule 
the  due  process  provision  forbids  the  legislature  to  enact 
any  law  the  enforcement  of  which  would  cause  any  person 
to  lose  his  life,  liberty  or  property.  As  a  consequence, 
we  cannot  base  upon  the  cases  to  which  the  court  has  re- 

135  See  sees.  33,  49-51,  supra,  and  quotation  in  note  75  in  Chapter  3, 
supra. 

136  See  sees.  31,  33,  49-51,  supra. 

137  See  sees.  127,  128,  131,  infra. 


222  DUE  PROCESS  CLAUSES— DISCUSSION. 

ferred  ^^^  the  broad  statement  that  by  virtue  of  the  due 
process  provision  any  legislation  which  affects  individ- 
uals is  unconstitutional  if  it  is  unreasonable.  And  so, 
while  it  may  be  said  correctly  that  the  court  may  inquire 
into  the  justification  for  exercises  of  the  police  power, 
this  statement  is  true  only  when  the  term  *' police  power" 
is  given  its  more  restricted  meaning,  and  it  is  not  true 
when  the  term  is  used  in  its  broader  sense. 

Reasonableness  and  natural  justice. 

114.  It  is  quite  possible  that  the  assertion  that  courts 
may  declare  invalid  legislation  which  they  consider  un- 
reasonable, while  it  claims  the  support  of  the  due  pro- 
cess provision,  is  based  in  large  measure  upon  the  idea 
that  legislation  which  conflicts  with  natural  justice  is 
void.^^^  We  have,  however,  already  observed  that  a  court 
is  not  justified  in  refusing  to  enforce  legislation  upon  the 
ground  that  it  is  not  in  accordance  with  natural  jus- 
tice.^^« 

Massachusetts  decisions. 

115.  The  court  has  also  referred  ^^^  to  cases  in  which 

138  See  note  128,  supra. 

139  See  Boudin,  Government  by  Judiciary,  26  Pol.  Sci.  Quar.  238,  265.  Sir 
Frederick  Pollock  (The  History  of  the  Law  of  Nature,  1  Col.  L.  Rev.  29,  30) 
quotes  St.  Germain's  statement  (Doctor  and  Student,  Dialogue  I,  Chap.  5) 
that  where  the  canonist  or  civilian  would  speak  of  the  law  of  nature,  the 
common  lawyer  speaks  of  reason,  and  says,  "Once  pointed  out,  the  analogy 
is  obviously  just,  and  a  real  connection  is  at  least  probable,  for  we  are  not 
to  suppose  that  the  judges  and  Serjeants  never  knew  any  more  of  what  the 
canonists  were  doing  than  is  disclosed  by  the  Year  Books."  On  the  idea  of 
the  supremacy  of  the  law  of  nature  and  its  history  see  authorities  cited  in 
sec.  100,  and  note  103,  supra. — Some  American  judges  who  have  used  the 
term  "natural  justice"  have  in  other  ways  shown  acquaintance  with  writ- 
ings of  civilians. 

140  See  note  103,  supra. 

141  See,  e.  g.,  Lawton  v.  Steele  (1894)  152  U.  S.  133,  137,  14  Sup.  Ct.  499, 
501,  38  L.  ed.  385. 


EEASONABLENESS.  223 

the  Supreme  Court  of  Massachusetts  has  passed  upon  the 
propriety  of  state  legislation.  But  that  position  was 
taken  by  the  state  court  because  of  a  provision  in  the 
state  constitution  which  does  not  appear  in  the  Federal 
Canstitution,^'*^  so  that  the  cases  from  Massachusetts  are 
not  in  point. 

Position  of  court  as  to  arbitrary  governmental  action. 

116.  As  we  have  already  noted,^*^  the  court  has  said 
that  the  due  process  provision  forbids  arbitrary  govern- 
mental action.  The  word  ^'arbitrary,"  however,  is  de- 
cidedly indefinite.  The  court  apparently  means  that  a 
governmental  action  cannot  rest  for  its  validity  simply 
upon  the  pleasure  of  the  organ  of  government  which  has 
taken  that  action;  but  we  cannot  say  with  positiveness 
that  the  court  is  making  a  statement  which  is  more  defi- 
nite than  that. 

Such  a  position  the  court  certainly  ought  to  take  in 
some  cases.  It  should  say  that,  in  view  of  the  constitu- 
tional objections  to  delegations  of  legislative  power  which 
usually  exist,  an  administrative  body  as  a  general  rule 
cannot  exercise,  even  under  color  of  a  legislative  grant  of 
power,  a  wide  range  of  discretion,  but  that  it  may  act  only 
in  accordance  with  pre-established  rules;  ^^^  and  the  court 
should  say  that  in  view  of  the  due  process  provision  of 
the  Fourteenth  Amendment  such  a  requirement  when 

142  "The  Massachusetts  Supreme  Court,  owing  to  the  formula  by  which 
power  is  vested  in  the  Massachusetts  constitution  in  the  legislature  to  pass 
'all  manner  of  wholesome  and  reasonable'  laws,  had  never  ceased  to  describe 
the  police  power,  even  when  according  to  it  the  broadest  possible  field  of 
operation,  as  a  power  of  'reasonable'  legislation:"  Corwin,  Due  Process  of 
Law  Before  the  Civil  War,  24  Harv.  L.  Rev.  460,  478.  See  also  Corwin,  The 
Establishment  of  Judicial  Review,  9  Mich.  L.  Rev.  283,  315, 

143  Sec.  105,  supra. 

144  See  sec.   39,  supra. 


224  DUE  PROCESS  CLAUSES— DISCUSSION. 

based  upon  the  state  constitution  may  be  enforced  in  the 
federal  courts. 

But  the  Supreme  Court  does  not  take  that  position.^ ^^ 
It  declares,  rather,  that  the  due  process  requirement  does 
not  authorize  the  federal  courts  to  enforce  compliance 
with  any  of  the  provisions  of  the  state  constitutions,  as 
such.  And  instead  of  limiting  its  statement  the  court 
seems  to  take,  instead,  the  position  that  no  organ  of  gov- 
ernment may  exercise  arbitrary  power.  The  court  appar- 
ently means  to  say,  at  times  at  least,  that  the  due  process 
provision  forbids  governmental  acts  which  are  oppressive 
or  unjust  or  not  based  upon  a  sufficient  reason. 

Discussion  of  position. 

117.  We  have  already  seen,  however,  that  the  court 
cannot  properly  declare  that  the  acts  of  other  organs  of 
government  are  unconstitutional  simply  because  they 
bring  about  results  which  are  in  the  opinion  of  the  court 
clearly  unjustifiable  from  an  economic  or  a  social  stand- 
point.^^^ 

And  the  court  certainly  cannot  take  the  position  that 
the  judiciary  possesses  the  right  to  review  all  the  actions 
of  other  organs  of  government.  As  Mr.  Sedgwick  has 
well  said,  ''K  it  is  meant  to  assert  that  there  should  be  no 
absolute  power  in  each  department  of  government,  then 
it  is  so  far  from  being  true,  that,  on  the  contrary,  without 
such  power  no  government  could  regularly  exist  an  hour; 
all  would  be  conflict  and  confusion.  It  cannot  be  denied 
that,  practically,  despotic  power  must  somewhere  exist  in 
every  system  that  assumes  to  order  and  regularity.  Ajy- 
peals  must  terminate,  controversies  must  cease,  discus- 

145  See  sec.  63,  supra. 

146  See  notes  83,  supra,  and  53,  supra. 


EEASONABLENESS.  225 

sions  must  end,  and  the  business  of  life  proceed.  To  effect 
this,  it  is  indispensable  that  there  must  be  somewhere 
lodged,  in  regard  to  the  operations  of  every  department 
of  government,  a  supreme,  inexorable  power  whose  de- 
cision is  conclusive;  and  whether  the  system  be  that  of  a 
monarchy,  an  oligarchy,  a  democracy,  or  that  mixed  form 
under  which  we  live,  such  power  will  always  be  found. 
In  the  very  case  before  us,  what  is  the  result  of  the  rea- 
soning but  to  claim  for  the  judiciary  the  very  absolutism 
which  is  denied  to  the  legislature?  If  the  statute  is  con- 
clusive, then  the  legislature  is  absolute;— granted.  But 
if  the  judgment  of  the  court  is  final, — and  to  be  efficacious 
it  must  be  so,— then  you  encounter  the  same  difficulty  at 
only  one  remove."  ^^'^  "The  law,"  as  was  said  by  the 
Supreme  Court  of  Michigan,^^^  ''must  leave  the  final  de- 
cision upon  every  claim  and  every  controversy  some- 
where, and  when  that  decision  has  been  made,  it  must  be 
accepted  as  correct."  ^^^ 

147  Sedgwick,  Interpretation  and  Construction  of  Statutory  and  Constitu- 
tional Law,  2d  ed.,  154. 

148  Sutherland  v.  Governor   (1874)   29  Mich.  320,  330,  331. 

149  See  also  section  51,  supra,  and  note  75  in  Chapter  3,  supra. — In  Stand- 
ard Oil  Co.  V.  Missouri  (1912)  224  U.  S.  270,  286,  32  Sup.  Ct.  406,  411,  56 
L.  ed.  760,  the  Supreme  Court  declared,  "The  power  to  render  a  final  judg- 
ment must  be  lodged  somewhere,  and  in  every  case  a  point  is  reached  where 
litigation  must  cease.  What  that  point  is  can  be  determined  by  the  legis- 
lative power  of  the  state,  for  right  of  appeal  is  not  essential  to  due  pro- 
cess of  law."  In  Chicago,  B.  &  Q.  Ry.  Co.  v.  Babcock  (1907)  204  U.  S.  585, 
598,  27  Sup.  Ct.  326,  329,  51  L.  ed.  636,  the  court  said,  "The  action  does  not 
appear  to  have  been  arbitrary  except  in  the  sense  in  which  many  honest  and 
sensible  judgments  are  so.  They  express  an  intuition  of  experience  which 
outruns  analysis  and  sums  up  many  unnamed  and  tangled  impressions, — im- 
pressions which  may  lie  beneath  consciousness  without  losing  their  worth. 
[With  this  compare  Interstate  Com.  Comn.  v.  Louisville  &  N.  R.  Co.  (1913) 
227  U.  S.  88,  93,  33  Sup.  Ct.  185,  187,  57  L.  ed.  431;  United  States  v.  Balti- 
more &  0.  S.  W.  R.  Co.  (1912)  226  U.  S.  14,  20,  33  Sup.  Ct.  5,  6,  57  L.  ed. 
104.]  The  board  was  created  for  the  purpose  of  using  its  judgment  and  its 
knowledge Within  its  jurisdiction,  except,  as  we  have  said,  in 

15 


226  DUE  PROCESS  CLAUSES— DISCUSSION. 

Reasonableness  of  rate  regulations. 

118.  In  conclusion  we  must  note  those  cases  in  which, 
the  court  has  declared  that  the  due  process  provision  au- 
thorizes the  judiciary  to  pass  upon  the  reasonableness  of 
rate  regulations. ^^^  This  position  has  been  based  upon 
three  grounds. 

It  has  been  said  broadly  that  only  reasonable  regula- 
tions may  be  imposed  upon  carriers.^  ^^  This  statement, 
which  applies  to  all  organs  of  government,  does  not  rest 

the  case  of  fraud  or  a  clearly  shown  adoption  of  wrong  principles,  it  is  the 
ultimate  guardian  of  certain  rigkts.  The  state  has  confided  those  rights  to 
its  protection  and  has  trusted  to  its  honor  and  capacity  as  it  confides  the 
protection  of  other  social  relations  to  the  courts  of  law.  Somewhere  there 
must  be  an  end."  In  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S. 
503,  515,  516,  22  Sup.  Ct.  95,  100,  46  L.  ed.  298,  the  court  said,  "Finality  is 
a  characteristic  of  the  judgments  of  all  tribunals,  unless  the  laws  provide 
for  a  review.  Nothing  is  more  common  than  the  appointment  of  juries  or 
commissioners  to  find  the  value  of  lands  taken  for  public  use,  or  to  assess 
damages  to  them,  whose  findings  are  deemed  final.  Yet  the  evidence  on 
which  they  act  is  not  preserved,  nor  do  the  courts  go  into  any  inquiry  into 
the  various  sources  and  grounds  of  judgment  upon  which  the  appraisers 
have  proceeded.  If  there  are  charges  of  fraud  or  corruption,  the  courts 
may  consider  them;  but  it  has  never  been  held  that  the  finality  of  their 
findings  made  the  action  of  the  appraisers  unconstitutional  or  void." 

150  Smyth  v.  Ames  (1898)  171  U.  S.  361,  18  Sup.  Ct.  488,  43  L.  ed.  197, 
169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819;  Lake  S.  &  M.  S.  Ry.  Co.  v. 
Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  ed.  858;  Chicago,  M.  & 
St.  P.  Ry.  Co.  V.  Minnesota  (1890)  134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33 
L.  ed.  970;  Ex  parte  Young  (1908)  209  U.  S.  123,  147,  28  Sup.  Ct.  441,  448, 
52  L.  ed.  714,  13  L.  R.  A.  N.  S.  932,  942.  See  also  Railroad  Comn.  of  La.  v. 
Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed. 
577;  Alabama  &  V.  Ry.  Co.  v.  Mississippi  R.  Comn.  (1906)  203  U.  S.  496, 
501,  27  Sup.  Ct.  163,  165,  51  L.  ed.  289;  Minneapolis  &  St.  L.  R.  Co.  v.  Min- 
nesota (1902)  186  U.  S.  257,  269,  22  Sup.  Ct.  900,  905,  46  L.  ed.  1151;  cases 
in  notes  165,  166,  infra.  Compare  Mimn  v.  Illinois  (1876)  94  U.  S.  113, 
133,  24  L.  ed.  77;  Peik  v.  Chicago  &  N.  W.  Ry.  Co.  (1876)  94  U.  S.  164,  178, 
24  L.  ed.  97;  Budd  v.  New  York  (1892)  143  U.  S.  517,  546-548,  12  Sup.  Ct. 
468,  476,  477,  36  L.  ed.  247;  Smalley,  Railroad  Rate  Control  (Publications 
of  the  American  Economic  Assn.)   25,  39,  40,  48,  49,  50. 

151  See,  e.  g.,  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19 
Sup.  Ct.  565,  43  L.  ed.  858. 


REASONABLENESS.  227 

upon  considerations  which  are  peculiar  to  carriers,  and 
therefore  does  not  call  for  separate  examination. 

It  has  been  said  that  because  at  common  law  the  judi- 
ciary had  jurisdiction  to  determine  whether  the  rates 
named  by  the  carrier  were  reasonable  it  follows  that  the 
courts  have  jurisdiction  to  determine  whether  rates  named 
by  an  organ  of  government  are  reasonable.^^^  We  have 
already  examined  this  position  ^^^  and  we  have  seen  that 
if  the  courts  have  power  to  inquire  into  the  reasonable- 
ness of  rate  regulations  established  by  an  organ  of  gov- 
ernment that  power  must  rest  upon  some  other  ground. 

And  it  has  been  said  that  where  the  legislature  pro- 
vides that  rates  shall  be  reasonable  the  determination  of 
what  are  reasonable  rates  is  a  part  of  the  enforcement  of 
the  law  and  is,  therefore,  a  matter  which  must  be  decided 
by  the  courts. ^^^  Of  course,  if  the  legislature  simply  pro- 
vides that  rates  shall  be  reasonable,  and  the  courts  con- 
sider that  a  definite  rule  of  law  is  thereby  established,  the 
courts  may  enforce  that  rule  and  in  order  to  do  so  may,  in 
cases  properly  before  them,  determine  what  are  reason- 
able rates,^^^  But,  on  the  other  hand,  the  court  of  last 
resort  has  declared  repeatedly  that  the  legislature  itself 
may  name  specific  rates  for  future  transportation  and 
that  it  may  authorize  a  commission  to  name  such  rates  in 
accordance  with  principles  laid  down  by  the  legislature 
and  that  in  so  doing  it  is  not  entrenching  upon  the  power 
of  the  judiciary.^^^    Where,  therefore,  a  regulation  does 

152  See  note  33  in  Chapter  2,  supra,  and  see  sec.  121,  infra. 

153  See  sees.  33,  34,  49-51,  60,  supra. 

154  See  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S.  418, 
10  Sup.  Ct.  462,  702,  33  L.  ed.  970;  Ex  parte  Young  (1908)  209  U.  S.  123, 
147,  28  Sup.  Ct.  441,  448,  .52  L.  ed.  714,  13  L.  R.  A.  N.  S.  932,  942;  Missouri 
P.  Ry.    Co.  V.  Tucker  (1913)   230  U.  S.  340,  33  Sup.  Ct.  961,  57  L.  ed.  1507. 

155  See  sees.  49,  50,  supra. 

156  See  sees.  34,  35,  38,  51,  60,  supra. 


228  DUE  PROCESS    CLAUSES— DISCUSSION. 

not  violate  the  substantive  restraints  of  the  constitutions 
the  legislature  may  unquestionably  restrict  the  power  of 
the  courts  simply  to  the  consideration  of  the  question 
whether  or  not  that  regulation  has  been  obeyed. 

It  may  be  added  that  in  recent  cases  relating  to  rate 
regulation  the  court  usually  instead  of  saying  simply  that 
the  due  process  provision  prohibits  the  imposition  of  un- 
reasonable rates  says  rather  that  it  prohibits  the  impo- 
sition of  rates  which  are  "plainly  unreasonable  to  the 
extent  that  their  enforcement  would  be  equivalent  to  the 
taking  of  property  for  public  use  without  such  compensa- 
tion as  under  the  circumstances  is  just  both  to  the  owner 
and  the  public."  ^^'^  This  is  a  somewhat  different  posi- 
tion ^^^  and  it  will  constitute  the  next  topic  for  our  con- 
sideration. 

i57WiIlcox  V.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  41,  29  Sup.  Ct. 
192,  195,  53  L.  ed.  382.  The  language  used  is  taken  almost  verbatim  from 
San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S.  739,  754,  19  Sup. 
Ct.  804,  810,  43  L.  ed.  1154,  where  the  court  adds,  "Judicial  interference 
should  never  occur  unless  the  case  presents,  clearly  and  beyond  all  doubt, 
such  a  flagrant  attack  upon  the  rights  of  property  under  the  guise  of  regu- 
lations as  to  compel  the  court  to  say  that  the  rates  prescribed  will  necessar- 
ily have  the  effect  to  deny  just  compensation  for  private  property  taken  for 
the  public  use."  See  also  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1, 
16,  17,  18,  29  Sup.  Ct.  148,  153,  154,  53  L.  ed.  371 ;  and  other  cases  in  note 
161,  infra;  Noyes,  American  Railroad  Rates,  212,  note.  Compare  end  of 
note  160,  infra. 

158  It  is  conceivable  that  rates  which  would  yield  what  abstractly  consid- 
ered would  be  just  compensation  to  the  carrier  might  be  in  other  respects 
so  unreasonable  or  so  discriminatory  as  to  be  unconstitutional.  Even  where 
the  carrier  did  not  raise  the  question — and  the  carrier  would  not  always 
have  the  right  so  to  do — (with  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899) 
173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  ed.  858,  compare  Interstate  Com.  Comn. 
.V.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  30  Sup.  Ct.  651,  54  L. 
ed.  946)  the  objection  might  possibly  be  raised  by  shippers  or  passengers  in 
one  part  of  the  state  or  one  part  of  the  country  or  by  one  or  more  classes 
of  shippers  or  classes  of  passengers.  (See,  however,  Board  of  R.  Comrs.  v. 
Symns  Grocer  Co.   (1894)   53  Kan.  207,  35  Pac.  217.) 


JUST  COMPENSATION.  229 

We  shall  postpone  to  a  later  chapter  ^^^  the  considera- 
tion of  the  principles  which  are  invoked  in  appljang  these 
tests  and  which  detemiine  whether  the  limits  imposed 
are  such  that  their  enforcement  would  be  declared  uncon- 
stitutional. 

JUST  COMPENSATION. 

The  position  of  the  court. 

119.  The  United  States  Supreme  Court  has  frequently 
said  that  the  due  process  clause  of  the  Fourteenth  Amend- 
ment forbids  the  taking  of  private  property  for  public  use 
without  just  compensation  ;^^^  and  this  statement  has  been 

159  Chapter  6,  infra. 

160  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200  U.  S.  561,  593,  26  Sup. 
Ct.  341,  350,  50  L.  ed.  596;  Norwood  v.  Baker  (1898)  172  U.  S.  269,  19  Sup. 
Ct.  187,  43  L.  ed.  443.  See  also  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  (1897) 
166  U.  S.  226,  17  Sup.  Ct.  581,  41  L.  ed.  979;  Appleby  v.  Buffalo  (1911)  221 
U.  S.  524,  530,  532,  31  Sup.  Ct.  699,  701,  702,  55  L.  ed.  838;  Sauer  v.  New 
York  (1907)  206  U.  S.  536,  547,  548,  27  Sup.  Ct.  686,  689,  690,  51  L.  ed. 
1176;  West  C.  S.  R.  Co.  v.  People  (1906)  201  U.  S.  506,  26  Sup.  Ct.  518, 
50  L.  ed.  845;  California  R.  Co.  v.  Sanitary  R.  Works  (1905)  199  U.  S.  306, 
26  Sup.  Ct.  100,  50  L.  ed.  204;  Union  R.  T.  Co.  v.  Kentucky  (1905)  199  U. 
S.  194,  26  Sup.  Ct.  36,  50  L.  ed.  150;  Ohio  Oil  Co.  v.  Indiana  (1900)  177  U. 
S.  190,  20  Sup.  Ct.  576,  44  L.  ed.  429;  Henderson  B.  Co.  v.  Henderson  City 
(1899)  173  U.  S.  592,  614,  19  Sup.  Ct.  553,  561,  562,  43  L.  ed.  823;  Backus 
V.  Fort  S.  U.  D.  Co.  (1898)  169  U.  S.  557,  18  Sup.  Ct.  445,  42  L.  ed.  853; 
Holden  v.  Hardy  (1898)  169  U.  S.  366,  390,  18  Sup.  Ct.  383,  387,  42  L.  ed. 
780;  Long  I.  W.  S.  Co.  v.  Brooklyn  (1897)  166  U.  S.  685,  17  Sup.  Ct.  718, 
41  L.  ed.  1165;  McGovern  v.  City  of  New  York  (1913)  229  U.  S.  363,  371, 
33  Sup.  Ct.  876,  877,  57  L.  ed.  1228;  Ettor  v.  Tacoma  (1913)  228  U.  S.  148, 
33  Sup.  Ct.  428,  57  L.  ed.  773;  Manigault  v.  Springs  (1905)  199  U.  S.  473, 
26  Sup.  Ct.  127,  50  L.  ed.  274;  Gardner  v.  Michigan  (1905)  199  U.  S.  325, 
26  Sup.  Ct.  106,  50  L.  ed.  212;  Muhlker  v.  New  Y.  &  H.  R.  Co.  (1905)  197 
U.  S.  544,  25  Sup.  Ct.  522,  49  L.  ed.  872;  New  0.  G.  L.  Co.  v.  Drainage 
Comn.  (1905)  197  U.  S.  453,  25  Sup.  Ct.  471,  49  L.  ed.  831;  Williams  v. 
Parker  (1903)  188  U.  S.  491,  23  Sup.  Ct.  440,  47  L.  ed.  559;  Missouri  P.  Ry. 
Co.  V.  Nebraska  (1910)  217  U.  S.  196,  30  Sup.  Ct.  461,  54  L.  ed.  727;  and 
eases  in  notes  161,  190,  191,  infra. — The  court,  however,  in  declaring  that 
the  due  process  provision  requires  the  payment  of  compensation  when  prop- 
erty is  taken  for  public  use  has  not  always  followed  strictly  the  phraseology 


230  DUE  PROCESS  CLAUSES— DISCUSSION. 

made  a  basis  for  declaring  invalid  state  regulations  which 
were  said  by  the  court  to  limit  rates  to  an  improper  ex- 
tent.i«^ 

Dicta  in  earliest  cases. 

120.  Its  declaration  that  a  state  may  not  so  take  pri- 
vate property  was  at  first  made  almost  exclusively^®^  in 

of  the  provision  for  just  compensation  in  the  Fifth  Amendment  (see,  e.  g., 
Backus  V.  Fort  S.  U.  D.  Co.  (1898)  169  U.  S.  557,  565,  576,  578,  18  Sup.  Ct. 
445,448,  452,  453,  42  L.  ed.  853),  so  that  it  is  not  altogether  clear  that  that 
tribunal  would  examine  the  adequacy  of  compensation  for  property  taken  as 
closely  if  the  question  arose  under  the  due  process  proiision  as  it  would  if 
the  question  arose  under  the  provision  for  just  compensation  in  the  Fifth 
Amendment.    But  compare  final  paragraph  in  section  118,  supra. 

161  Smyth  V.  Ames  (1898)  171  U.  S.  361,  18  Sup.  Ct.  488,  43  L.  ed.  197, 
169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819;  Lake  S.  &  M.  S.  Ey.  Co.  v. 
Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  ed.  858.  See  also  Minne- 
sota Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  434,  33  Sup.  Ct. 
729,  754,  57  L.  ed.  1511;  Lincoln  G.  &  E.  L.  Co.  v.  Lincoln  (1912)  223  U.  S. 
349,  32  Sup.  Ct.  271,  56  L.  ed.  466;  Willcox  v.  Consolidated  G.  Co.  (1909) 
212  U.  S.  19,  41,  42,  44,  45,  29  Sup,  Ct.  192,  195,  196,  197,  53  L.  ed.  382; 
Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  16,  17,  18,  29  Sup.  Ct. 
148,  153,  154,  53  L.  ed.  371;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899) 
174  U.  S.  739,  754,  19  Sup.  Ct.  804,  810,  43  L.  ed.  1154;  Peoria  G.  &  E.  Co.  v. 
Peoria  (1906)  200  U.  S.  48,  26  Sup.  Ct.  214,  50  L.  ed.  305;  Chicago,  M.  & 
St.  P.  Ry.  Co.  V.  Tompkins  (1900)  176  U.  S.  167,  20  Sup.  Ct.  336,  44  L.  ed. 
417;  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503,  22  Sup.  Ct. 
95,  46  L.  ed.  298;  Railroad  Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.  (1909) 
212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed.  577;  and  Interstate  Com.  Comn.  v. 
Union  P.  R.  Co  (1912)  222  U.  S.  541,  547,  32  Sup.  Ct.  108,  111,  56  L.  ed. 
308,  the  last  of  which  referred  to  the  Fifth  Amendment.  Compare  Norfolk 
&  S.  T.  Co.  v.  Virginia  (1912)  225  U.  S.  264,  32  Sup.  Ct.  828,  57  L.  ed.  1082; 
Back  R.  N.  T.  Co.  v.  Homberg  (1903)  96  Md.  430,  54  Atl.  82;  Martin,  Re- 
cent Federal  Court  Decisions  Affecting  State  Laws  Regulating  Freight  and 
Passenger  Rates,  21  Yale  L.  J.  117,  120,  121,  125. 

162  See,  however,  dicta  by  Bradley,  J.,  in  concurring  opinion  in  Davidson 
V.  New  Orleans  (1877)  96  U.  S.  97,  107,  24  L.  ed.  616.  But  compare  dissent- 
ing opinion  by  same  justice  in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota 

(1890)  134  U.  S.  418,  465,  10  Sup.  Ct.  462,  705,  33  L.  ed.  970.  In  Baker  v. 
Village  of  Norwood   (1896)    74  Fed.  997,  1000,  and  Scott  v.  City  of  Toledo 

(1888)  36  Fed.  385,  394,  1  L.  R.  A.  688,  it  is  said  that  a  dicta  from  a  con- 
curring opinion  in  Davidson  v.  New  Orleans  is  quoted  with  approval  in  Ken- 
tucky R.  Tax  Cases   (1885)    115  U.  S.  321,  331,  6  Sup,  Ct,  57,  60,  29  L,  ed. 


JUST  COMPENSATION.  >  231 

dicta  in  which  no  reference  was  made  to  the  due  process 
clause  as  a  basis  for  the  statement.^^^  It  was  apparently 
made  because  of  the  existence  of  a  just  compensation  pro- 
vision in  the  Fifth  Amendment,  which,  of  course,  is  not 
a  restraint  upon  state  action,  or  because  of  the  existence 
of  just  compensation  provisions  in  state  constitutions, 
provisions  with  which  the  Supreme  Court  cannot  properly 
concern  itself  in  cases  coming  from  state  courts.^ ^^ 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota. 

121.  Then  followed  a  case  under  the  due  process  clause 
in  which  it  was  held  that  a  non-judicial  body  cannot  limit 
the  charges  of  railroads  to  an  unreasonable  extent.  ^®^ 

414;  but  in  the  latter  case  the  Supreme  Court  does  not  quote  any  of  the 
language  cited  in  the  Norwood  case,  it  does  not  quote  all  of  the  language 
cited  in  the  Toledo  case,  and  its  approval  is  of  a  portion  of  the  language 
actually  quoted  which  relates  strictly  to  procedure. 

163  Justice  Field,  who  subsequently  declared  in  a  dissenting  opinion  in 
O'Neil  V.  Vermont  (1892)  144  U.  S.  323,  363,  12  Sup.  Ct.  693,  708,  36  L.  ed. 
450,  that  the  states  may  not  abridge  rights  of  person  which  the  first  eight 
Amendments  protect  against  infringement  by  the  federal  government,  de- 
clared in  a  dissenting  opinion  in  Spring  V.  W.  v.  Schottler  (1884)  110  U.  S. 
347,  377,  4  Sup.  Ct.  48,  63,  28  L.  ed.  173,  a  case  coming  from  a  state  court, 
that  a  state  may  not  take  private  property  without  just  compensation.  See 
also  Munn  v.  Illinois  (1876)  94  U.  S.  113,  145,  24  L.  ed.  77.  In  Stone  v. 
Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  331,  6  Sup.  Ct.  334,  345,  29  L. 
ed.  636,  Waite,  C.  J.,  declared  in  a  dictiun  that  a  state  may  not  so  take 
private  property.  This  dictiun  was  cited  in  dicta  in  Dow  v.  Beidelman 
(1888)  125  U.  S.  680,  689,  8  Sup.  Ct.  1028,  1030,  31  L.  ed.  841;  Georgia  R. 
&  B.  Co.  V.  Smith  (1888)  128  U.  S.  174,  179,  9  Sup.  Ct.  47,  48,  32  L.  ed.  377; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S.  418,  456,  10 
Sup.  Ct.  462,  466,  33  L.  ed.  970  (see  also  dissenting  opinion,  134  U.  S.  465, 
10  Sup.  Ct.  705,  33  L.  ed.  984)  ;  Budd  v.  New  York  (1892)  143  U.  S.  517, 
547,  12  Sup.  Ct.  468,  477,  33  L.  ed.  247.  Compare  Corwin,  The  Supreme 
Court  and  the  Fourteenth  Amendment,  7  Mich.  L.  Rev.  643,  658;  Smalley, 
Railroad  Rat«  Control  (Publications  of  the  American  Economic  Assn.)  25 
et  seq. 

164  See  notes  45,  47  in  Chapter  3,  supra. 

165  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S.  418,  10 
Sup.  Ct.  462,  702,  33  L.  ed.  970.     The  court  rested  its  decision  almost  en- 


232  DUE  PROCESS  CLAUSES— DISCUSSION. 

The  decision  related  to  the  method  of  regulating  railroad 
rates.  This  case  has  been  cited  in  some  later  opinions  in 
company  with  cases  to  which  we  have  already  referred 
which  contained  dicta  on  just  compensation.  In  some 
instances  the  phrases  ''reasonable  rates"  and  ''just  com- 
pensation" are  intermingled  in  the  same  opinions.^ '^^ 

tirely  on  the  matter  of  procedure,  although  it  did  make  a  brief  reference  to 
the  equal  protection  provision.  See  also  Ex  parte  Young  (1908)  209  U.  S. 
123,  147,  148,  166,  28  Sup.  Ct.  441,  448,  449,  456,  52  L.  ed.  714,  13  L.  E.  A. 
N.  S.  932,  942,  950;  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362, 
397,  14  Sup.  Ct.  1047,  1054,  38  L.  ed.  1014;  Missouri  P.  Ry.  Co.  v.  Tucker 
(1913)  230  U.  S.  340,  33  Sup.  Ct.  961,  57  L.  ed.  1507,  and  comments  on  po- 
sitions taken  in  these  cases  expressed  in  section  60,  supra;  authorities  cited 
in  note  16  of  Chapter  2,  supra;  note  150  of  Chapter  4,  supra;  and  Smalley, 
Railroad  Rate  Control  (Publications  of  the  American  Economic  Assn.)  25, 
32  et  seq.,  119,  120;  Corwin,  The  Supreme  Court  and  the  Fourteenth  Amend- 
ment, 7  Mich.  L.  Rev.  643,  660,  661;  sections  111,  112,  supra.  On  the  method 
followed  by  the  commission  in  C,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  see  Chi- 
cago, B.  &  Q.  Ry.  Co.  V.  Babeock  (1907)  204  U.  S.  585,  598,  27  Sup.  Ct.  326, 
329,  51  L.  ed.  636,  quoted  in  note  149,  supra;  Home  T.  &  T.  Co.  v.  Los  An- 
geles (1908)  211  U.  S.  265,  278,  29  Sup.  Ct.  50,  54,  53  L.  ed.  176,  quoted  in 
note  51  of  Chapter  3,  supra;  and  also  Chesapeake  &  P.  T.  Co.  v.  Manning 
(1902)  186  U.  S.  238,  245,  22  Sup.  Ct.  881,  884,  46  L.  ed.  1144,  quoted  in 
note  50  of  Chapter  3,  supra.  On  the  suggestion  that  the  commission  was  ex- 
ceeding the  power  granted  to  it  by  the  statute,  it  may  be  thought  that  the 
cases  in  note  147  of  Chapter  2,  supra,  sustain  the  position  taken  by  the 
court,  but  this  seems  to  be  incorrect  in  view  of  the  cases  cited  in  the  latter 
part  of  note  47  of  Chapter  3,  supra. 

166  In  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman  (1892)  143  U.  S.  339,  344,  12 
Sup.  Ct.  400,  402,  30  L.  ed.  176,  the  court  says,  "The  legislature  has  power 
to  fix  rates,  and  the  extent  of  judicial  interference  is  protection  against  un- 
reasonable rates,"  citing  Stone  v.  Farmers'  L.  &  T.  Co.  (see  note  163,  supra) 
and  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (see  note  165,  supra)  and 
thus  blending  two  ideas.  In  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U. 
S.  362,  398,  399,  14  Sup.  Ct.  1047,  1054,  1055,  38  L.  ed.  1014,  these  two  cases 
are  cited  as  authorities  for  the  proposition  that  the  judiciary  may  restrain 
any  regulation  of  rates  "which  operates  to  deny  to  the  owners  of  property 
invested  in  the  business  of  transportation  that  equal  protection  which  is 
the  constitutional  right  of  all  owners  of  other  property."  See  also  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649,  658,  15  Sup.  Ct.  484,  488, 
39  L.  ed.  567;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578, 
592,  597,  17  Sup.  Ct.  198,  204,  205,  41  L.  ed.  560;  Smyth  v.  Ames  (1898)  169 
U.  S.  466,  523,  18  Sup.  Ct.  418,  425,  42  L.  ed.  819;  Louisville  &  N.  R.  Co.  v. 


JUST  COMPENSATION.  233 

Kaukauna  and  Yesler  cases. 

122.  Then  followed  Kaukauna  W.  P.  Co.  v.  Green  B. 
&  M.  C.  Co.i^''  and  Yesler  v.  Washington  H.  L.  Comrs.,^^^ 
in  which  the  court  declared  that  the  taking  of  property 
without  compensation  constitutes  a  deprivation  without 
due  process  of  law.  In  the  opinion  in  the  former  case 
there  was  no  discussion  of  the  question  and  no  authorities 
were  cited  in  support  of  the  position  taken.^^^  In  Yesler 
V.  Washington  H.  L.  Comrs.,  while  the  court  did  not  de- 
cide that  the  action  of  the  state  took  any  of  the  relator's 
property  or  so  injuriously  affected  it  as  to  be  unconstitu- 
tional, the  court  said  that  it  assumed  its  "jurisdiction  to 
revise  the  judgment  of  a  state  tribunal  upholding  a  law 
authorizing  the  taking  of  private  property  without  com- 

Kentucky  (1902)  183  U.  S.  503,  511,  22  Sup.  Ct.  95,  99,  46  L.  ed.  298.  In 
Smyth  V.  Ames  (1898)  171  U.  S.  361,  18  Sup.  Ct.  488,  43  L.  ed.  197;  Lake 
S.  &  M.  S.  Ry.  Co.  V.  Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct.  565,  43  L.  ed. 
858;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S.  739,  754,  19 
Sup.  Ct.  804,  810,  43  L.  ed.  1154;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins 
(1900)  176  U.  S.  167,  20  Sup.  Ct.  336,  44  L.  ed.  417,  the  phrases  "reason- 
able rates"  and  "just  compensation"  are  intermingled  in  the  same  opinions. 

167  (1891)   142  U.  S.  254,  12  Sup.  Ct.  173,  35  L.  ed.  1004. 

168  (1892)    146  U.  S.  646,  13  Sup.  Ct.  190,  36  L.  ed.  1119. 

169  In  that  case  the  court  said,  "It  is  evident  that  the  court  could  not 
have  reached  a  conclusion  adverse  to  the  defendant  company  without  hold- 
ing, either  that  none  of  its  property  had  been  taken,  or  that  it  was  not  en- 
titled to  compensation  therefor,  which  is  equivalent  to  saying  that  it  had 
not  been  deprived  of  its  property  without  due  process  of  law."  "We  think 
these  facts  and  allegations  are  sufficient  to  raise  the  constitutional  ques- 
tion whether  the  property  of  the  Water  Power  Company  had  been  taken 
without  compensation,  and  that  the  motion  to  dismiss  should,  therefore,  be 
denied:"  142  U.  S.  at  269,  271,  12  Sup.  Ct.  at  176,  177,  35  L.  ed.  at  1009. 
The  decree  of  the  state  court  was  affirmed.  The  court  cited  no  authority 
for  the  position  stated  in  the  language  quoted  above.  Counsel  had  cited 
(142  U.  S.  at  268)  the  concurring  opinion  of  one  justice  in  an  earlier  case,  a 
part  of  whose  language,  had  it  been  that  of  the  court,  would  have  directly 
supported  the  position  taken  in  the  Kaukauna  case;  and  he  had  cited  an 
opinion  of  the  court  which  quoted  with  approval  another  part  of  that  con- 
curring opinion  which  was  not  so  clearly  in  point. 


234  DUE  PROCESS  CLAUSES— DISCUSSION. 

pensation  to  he  unquestionable,"  ^''^  citing  in  support  of 
that  assumption  simply  the  Kaukauna  case,  in  which,  as 
already  pointed  out,  there  was  no  discussion  of  the  ques- 
tion and  no  citation  of  authorities  in  support  of  the  posi- 
tion. 

The  court  said  in  the  Yesler  case  that  the  provision 
forbidding  the  federal  government  to  take  private  prop- 
erty for  public  use  without  just  compensation, ' '  expressed 
in  the  Fifth  Amendment,  is  to  be  read  with  the  Fourteenth 
Amendment,  prohibiting  the  states  from  depriving  any 
person  of  property  without  due  process  of  law,  and  from 
denying  to  any  person  within  their  jurisdiction  the  equal 
protection  of  the  laws.  The  Amendment  undoubtedly 
forbids  any  arbitrary  deprivation  of  life,  liberty  or  prop- 
erty, and  secures  equal  protection  to  all  under  like  cir- 
cumstances in  the  enjoyment  of  their  rights."  ^"^^ 

The  statement  that  a  provision  of  the  Fifth  Amend- 
ment which  is  not  repeated  in  the  Fourteenth  Amend- 
ment should  be  read  with  the  latter  Amendment  obviously 
adds  nothing  to  the  value  of  the  opinion.  If  the  court 
might  say  that,  because  the  Fifth  Amendment  provides 
for  due  process  and  just  compensation,  the  Fourteenth 
Amendment  which  speaks  merely  of  due  process  of  law 
provides  also  for  just  compensation,  the  court  might  say 
with  equal  propriety  that  because  Section  10  of  Article  I 
of  the  Constitution  declares  that  no  state  shall  pass  any 
bill  of  attainder,  ex  post  facto  law  or  law  impairing  the 
obligation  of  contracts,  therefore  the  provision  of  Section 
9  of  that  Article  that  Congress  shall  not  pass  any  bill  of 
attainder  or  ex  post  facto  law  includes  a  prohibition  upon 
Congress  to  pass  any  law  which  impairs  the  obligation  of 

170  146  U.  S.  at  655,  13  Sup.  Ct.  at  194,  30  L.  ed.  at  1122. 
171 146  U.  S.  at  655,  13  Sup.  Ct.  at  194,  36  L.  eJ.  1122. 


JUST  COMPENSATION.  235 

contracts.     To  that  extent  at  least  the  position  of  the 
court  is  clearly  unsonnd.^'^^* 

We  have  already  considered  the  question  whether  the 
due  process  provision  prohibits  governmental  action 
which  is  arbitrary.^  ^2 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago. 

123.  Several  years  later,  without  referring  to  the  two 
cases  which  we  have  just  noted,  the  court,  in  Chicago,  B. 
&  Q.  R.  Co.  V.  Chicago,^' ^  declared  that  the  payment  of 
just  compensation  when  private  property  is  taken  for 
public  use  is  essential  to  due  process  of  law.  The  court, 
however,  affirmed  the  judgment  of  the  state  court.  It  dis- 
cussed the  question  at  some  length  and  gave  a  number  of 
citations,  but  its  reasons,  with  but  one  exception, ^^^  may 
be  dismissed  without  further  consideration. 

In  support  of  its  position  the  court  referred  to  decis- 
ions, dicta  and  statements  of  text-writers  that  the  legisla- 
tive customs  of  England,^^^  natural  justice,^'^  common 
law,  ^^'  principles  of  universal  law,^^^  and  principles  of 

iTiaSee  note  201,  infra. 

172  See  sees.  89,  91,  105,  116,  117,  supra. 

173  (1897)  166  U.  S.  226,  17  Sup.  Ct.  581,  41  L.  ed.  979. 

174  See  sec.  124,  infra. 

175  Blackstone,  Commentaries,  I,  *138,  *139.  (See  also  note  100,  supra. 
Compare  discussion  in  text  on  that  page.) 

176  Story,  Const.,  sec.  1790,  which  deals  with  the  provision  for  just  com- 
pensation in  the  Fifth  Amendment;  Bradshaw  v.  Rogers  (1822)  20  Johns. 
103,  106;  Martin  et  al.,  Ex  parte  (1853)  13  Ark.  198,  206  et  seq.;  Johnston 
V.  Rankin  (1874)  70  N.  C.  550,  555;  Gardner  v.  Newburgh  (1816)  2  Johns. 
Ch.  162.  See  also  Monongahela  N.  Co.  v.  United  States  (1893)  148  U.  S. 
312,  325,  13  Sup.  Ct.  622,  626,  37  L.  ed.  463.  (And  see  discussion  in  sees. 
92-104,  113,  supra.) 

177  Story,  Const.,  sec.  1790;  Parham  v.  The  Justices  (1851)  9  Ga.  341, 
348;  Sinnickson  v.  Johnson  (1839)  17  N.  J.  L.  129,  145.  See  also  Scott  v. 
City  of  Toledo  (1883)  36  Fed.  385,  394.  (Compare  note  16  in  Chapter  2, 
supra.    The  New  Jersey  case  was  cited  in  Pumpelly  v.  Green  B.  &  M.  C.  Co. 


236  DUE  PROCESS  CLAUSES— DISCUSSION. 

general  constitutional  law/'^  require  tlie  payment  of  just 
compensation  when  property  is  taken  for  public  use.  We 
have  already  examined  these  propositions  and  we  have 
seen  that  they  do  not  justify  the  decision. 

The  court  also  referred  to  decisions  on  provisions  for 
just  compensation  in  state  constitutions,^^"  to  a  decision 
on  the  provision  for  just  compensation  in  the  Fifth 
Amendment,^^^  and  to  a  decision  that  the  impairment  of 
contract  clause  prevents  deprivation  without  just  com- 
pensation.^ ^^  Those  decisions  obviously  have  no  bearing 
upon  the  question  under  consideration. 

(1871)  13  Wall.  166,  178,  20  L.  ed.  557,  mainly  for  the  purpose  of  showing 
what  constitutes  a  taking.) 

178  Story,  Const.,  sec.  1790;  Petition  of  Mt.  Washington  Road  Co.  (1857) 
35  N.  H.  134,  142.  (See  also  dissenting  opinion  in  Chicago,  B.  &  Q.  Ry.  Co. 
V.  People  (1906)  200  U.  S.  561,  598,  26  Sup.  Ct.  341,  352,  50  L.  ed.  596. 
Such  principles  cannot  have  any  greater  weight  on  constitutional  questions 
than  have  "principles  of  general  constitutional  law,"  discussed  in  note  179, 
infra.) 

179  Cooley,  Constitutional  Limitations,  *559,  7th  ed.,  812.  See  also  ibid. 
*356,  *357,  7th  ed.,  505,  506,  507;  and  Fletcher  v.  Peck  (1810)  6  Cranch, 
87,  135,  136,  3  L.  ed.  162;  Loan  Assn.  v.  Topeka  (1874)  20  Wall.  655,  663,  22 
L.  ed.  455;  Cole  v.  La  Grange  (1885)  113  U.  S.  1,  5  Sup.  Ct.  416,  28  L.  ed. 
396;  Searl  v.  School  Dist.   (1890)   133  U.  S.  553,  560,  562,  10  Sup.  Ct.  374, 

376,  377,  33  L.  ed.  740,  cases  which  arose  in  federal  courts.  (When  the 
validity  of  a  law  under  the  state  constitution  is  involved,  such  principles, 
it  is  said,  may  be  considered  in  a  case  arising  in  a  federal  court  unless  a 
state  court  has  already  passed  upon  the  question — but  only  under  such  cir- 
cumstances: see  Fallbrook  Irr.  Dist.  v.  Bradley  (1896)  164  U.  S.  112,  155,  17 
Sup.  Ct.  56,  62,  41  L.  ed.  369;  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97, 
105,  24  L.  ed.  616;  Satterlee  v.  Matthewson  (1829)  2  Pet.  380,  413,  414,  7 
L.  ed.  458;  and  note  47  in  Chapter  3,  supra.) 

iSOPmnpelly  v.  Green  B.  &  M.  C.  Co.  (1871)  13  Wall.  166,  20  L.  ed.  557; 
Searl  v.  School  Dist.  (1890)   133  U.  S.  553,  560,  562,  10  Sup.  Ct.  374,  376, 

377,  33  L.  ed.  740;  Sweet  v.  Reehel  (1895)  159  U.  S.  380,  392,  398,  399,  16 
Sup.  Ct.  43,  45,  48,  40  L.  ed.  188. 

181  Monongahela  N.  Co.  v.  United  States  (1893)  148  U.  S.  312,  13  Sup.  Ct. 
622,  37  L.  ed.  463.  (Compare  Barron  v.  Baltimore  (1833)  7  Pet.  243,  8  L. 
ed.  672.) 

182  People  V.  Piatt  (1819)   17  Johns.  195,  215. 


JUST  COMPEXSATION.  237 

The  court  cited  a  decision  of  a  state  court  that  the  tak- 
ing of  property  without  just  compensation  is  forbidden  by 
the  state  constitution  and  by  the  Fourteenth  Amendment 
to  the  Federal  Constitution.^^^  The  provision  of  the  state 
constitution  which  was  referred  to^^^  clearly  covers  the 
question,  so  that  reference  to  the  Federal  Constitution 
was  unnecessary^,  and,  moreover,  the  state  court  did  not 
say  that  it  is  the  due  process  provision  of  the  Fourteenth 
Amendment  which  requires  compensation. 

The  court  referred  to  a  decision,  a  dictum  and  state- 
ments by  text-writers  that  not  all  legislative  action,  nor 
all  procedure  prescribed  by  the  legislature,  would  satisfy 
the  constitutional  requirement.^^^  We  have  already  ex- 
amined these  indefinite  propositions  ^^^  and  we  have  seen 
that  their  validity  is  questionable.  But  even  if  the  propo- 
sitions were  clearly  established  it  would  not  necessarily 

183  Proprietors  of  Mt.  Hope  Cemetery  v.  Boston  (1893)  158  Mass.  509, 
519,  33  N.  E.  695,  698. 

184  "Each  individual  of  the  society  has  a  right  to  be  protected  by  it  in  the 
enjoyment  of  his  life,  liberty,  and  property,  according  to  standing  laws.  He 
is  obliged,  consequently,  to  contribute  his  share  to  the  expense  of  this  pro- 
tection, to  give  his  personal  service,  or  an  equivalent,  when  necessary;  but 
no  part  of  the  property  of  any  individual  can,  with  justice,  be  taken  from 
him,  or  applied  to  public  uses,  without  his  own  consent,  or  that  of  the  rep- 
resentative body  of  the  people.  In  fine,  the  people  of  this  commonwealth 
are  not  controllable  by  any  other  laws  than  those  to  which  their  constitu- 
tional representative  body  have  given  their  consent.  And  whenever  the  pub- 
lic exigencies  require  that  the  property  of  any  individual  should  be  appro- 
prated  to  public  uses,  he  shall  receive  a  reasonable  compensation  therefor:" 
Declaration  of  Eights,  Article  X. 

185  Scott  V.  City  of  Toledo  (1888)  36  Fed.  385,  393,  1  L.  R.  A.  688;  David- 
son v.  New  Orleans  (1877)  96  U.  S.  97,  102,  24  L.  ed.  616;  Cooley,  Constitu- 
tional Limitations,  *3o6,  *357,  7th  ed.,  505-507 ;  Story,  Const.,  II,  sec.  1956. 
(And  see  Lochner  v.  New  York  (1905)  198  U.  S.  45,  56,  25  Sup.  Ct.  539, 
542,  49  L.  ed.  937;  Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.  (1855)  18  How, 
272,  276,  15  L.  ed.  372;  Cooley,  Const.  Lim.,  *354,  7th  ed.,  503;  and  cases  in 
note  58  of  Chapter  3,  supra.) 

186  See  Topics  Is  Provision  Necessarily  a  Substantive  Restraint  and  The 
Law  of  the  Land,  supra. 


238  DUE  PROCESS  CLAUSES— DISCUSSION. 

follow  that  the  due  process  clauses  ordained  the  particular 
substantive  restraint  which  is  now  under  consideration. 
The  court  cites  two  decisions  by  federal  circuit  courts 
that  just  compensation  for  property  taken  for  public  use 
is  required  b}^  the  due  process  clause  of  the  Fourteenth 
Amendment.^^^  Those  decisions  are  based  to  a  consider- 
able extent  upon  misstatements  as  to  the  position  of  the 
Supreme  Court  in  one  case,  ^^^  and  upon  a  dictum  in  an- 
other case  which  is  fully  counter-balanced  by  another 
dictum  in  that  same  earlier  case  which  is  more  directly  in 
point.  ^^^ 

The  taking  of  property  for  private  use. 

124.  There  remains  for  our  consideration  but  one 
ground  for  the  decision  in  the  Chicago  case.  The  court 
also  based  that  decision  upon  earlier  statements  that  the 
taking  of  property  from  one  individual  without  his  con- 
sent and  giving  it  to  another  would  be  a  deprivation 

187  Scott  V.  City  of  Toledo  (1888)  36  Fed.  385,  1  L.  R.  A.  688,  followed  in 
Baker  v.  Village  of  Norwood   (1896)    74  Fed.  997. 

188  See  comment  on  tlie  above  cases  in  note  162,  supra. 

189  In  the  Toledo  case  the  court  says,  "It  involves  no  forced  or  unreason- 
able construction  to  hold  that  this  Fourteenth  Amendment,  as  applied  to 
the  appropriation  of  private  property  for  public  uses,  was  clearly  intended 
to  place  the  same  limitation  upon  the  power  of  the  states  which  the  Fifth 
Amendment  had  placed  upon  the  authority  of  the  federal  government:" 
36  Fed.  395,  1  L.  R.  A.  695.  Compare  page  234,  supra;  note  53,  supra,  and 
cases  in  note  201,  infra.)  "There  is  no  difference  in  principle  between  the 
case  put  by  Mr.  Justice  Miller,  as  an  illustration,  in  Davidson  v.  New  Or- 
leans (1877)  96  U.  S.  97,  102,  24  L.  ed.  616,  viz.,  the  taking  of  property 
from  A.  and  vesting  it  in  B.,  and  the  taking  of  property  from  an  individual 
and  vesting  it  in  the  public:"  36  Fed.  396,  1  L.  R.  A.  395.  (Compare  David- 
son V.  New  Orleans  (1877)  96  U.  S.  97,  105,  24  L.  ed.  616,  620;  Fallbrook 
Irr.  Dist.  v.  Bradley  (1896)  164  U.  S.  112,  158,  17  Sup.  Ct.  56,  63,  41  L.  ed. 
369;  21  Harv.  L.  Rev.  at  392,  393.)  Scott  v.  City  of  Toledo  is  measurably 
supported  by  Henderson  v.  Central  P.  Ry.  Co,  (1884)  21  Fed.  358,  365.  See 
also  Story,  Const.,  sec.  1956. 


JUST  COMPENSATION.  239 

without  due  process  of  law.^®°  There  are  later  decisions 
and  statements  to  the  same  effect.^^^  The  rule  seems  to 
be  desirable,  although  the  court  has  usually  found  it  im- 
possible to  be  strict  in  passing  upon  the  question  whether 
the  use  for  which  the  property  was  taken  was  public  or 
private.^ *^^  But  the  court  has  not  in  a  single  case  in  which 
it  has  taken  that  position  shown  that  such  a  rule  can  be 
properly    based    upon    the    due    process    provision.^^^ 

190  Missouri  P.  Ry.  Co.  v.  Nebraska  (1896)  164  U.  S.  403,  17  Sup.  Ct.  130, 
41  L.  ed.  489.  (In  Fallbrook  Irr.  Dist.  v.  Bradley  ( 1896)  164  U.  S.  112,  158, 
17  Sup.  Ct.  56,  63,  41  L.  ed.  369,  the  court  apparently  concedes  that  the 
just  compensation  provision  does  not  apply  to  the  states.  In  Cole  v.  La 
Grange  (1885)   113  U.  S.  1,  5  Sup.  Ct.  416,  28  L.  ed.  396,  cited  at  164  U.  S. 

161,  17  Sup.Ct.  64,  41  L.  ed.  390;  Parkersburg  v.  Brown  (1883)  106  U.  S.  487, 
501,  1  Sup.  Ct.  442,  453,  27  L.  ed.  238;  Loan  Assn.  v.  Topeka  (1874)  20 
Wall.  655,  22  L.  ed.  455,  three  cases  in  which  it  was  declared  that  the  state 
legislatures  could  not  authorize  the  taking  of  private  property  for  private 
uses,  the  court  was  interpreting  state  constitutions.  The  cases  arose  in 
federal  courts.)  In  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  the  court  also  cited 
a  dictum  in  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  102,  24  L.  ed. 
616,  619,  and  might  have  referred  to  96  U.  S.  107,  24  L.  ed.  621,   (see  note 

162,  supra)  but  omitted  reference  to  96  U.  S.  105,  24  L.  ed.  620. 

191  Cleveland  E.  Ry.  Co.  v.  Cleveland  &  F.  C.  Ry.  Co.  (1907)  204  U.  S. 
116,  27  Sup.  Ct.  202,  51  L.  ed.  399  (with  which  compare  Offield  v.  New  Y., 
N.  H.  &  H.  R.  Co.  (1906)  203  U.  S.  372,  27  Sup.  Ct.  72,  51  L.  ed.  231)  ; 
Madisonville  T.  Co.  v.  St.  Bernard  M.  Co.  (1905)  196  U.  S.  239,  251,  25  Sup. 
Ct.  251,  256,  49  L.  ed.  462.  See  also  Missouri  P.  Ry.  Co.  v.  Nebraska  (1910) 
217  U.  S.  196,  30  Sup.  Ct.  461,  54  L,  ed.  727;  Louisville  &  N.  R.  Co.  v.  Cen- 
tral S.  Y.  Co.  (1909)  212  U.  S.  132,  29  Sup.  Ct.  246,  53  L.  ed.  441;  Holden 
v.  Hardy  (1898)  169  U.  S.  366,  390,  18  Sup.  Ct.  383,  387,  42  L.  ed.  780; 
King  V.  Hatfield  (1900)   130  Fed.  564;  and  cases  in  note  192,  infra. 

i92Hairston  v.  Danville  &  W.  Ry.  Co.  (1908)  208  U.  S.  598,  607,  28  Sup. 
Ct.  331,  335,  52  L.  ed.  637;  Offield  v.  New  Y.,  N.  H.  &  H.  R.  Co.  (1906)  203 
U.  S.  372,  27  Sup.  Ct.  72,  51  L.  ed.  231;  Otis  Co.  v.  Ludlow  M.  Co.  (1906) 
201  U.  S.  140,  26  Sup.  Ct.  353,  50  L.  ed.  696 ;  Strickley  v.  Highland  B.  G.  M. 
Co.  (1906)  200  U.  S.  527,  26  Sup.  Ct.  301,  50  L.  ed.  581;  Clark  v.  Nash 
(1905)  198  U.  S.  361,  25  Sup.  Ct.  676,  49  L.  ed.  1085.  And  see  Noble  State 
Bk.  V.  Haskell  (1911)  219  U.  S.  104,  110,  575,  31  Sup.  Ct.  186,  187,  188,  299, 
55  L.  ed.  112;  Bacon  v.  Walker  (1907)  204  U.  S.  311,  27  Sup.  Ct.  289,  51  L. 
ed.  499;  Dickinson  T.  R.  (1903)  23  Pa.  Super.  34;  5  Harv.  L.  Rev.  30.  Com- 
pare Cleveland  E.  Ry.  Co.  v.  Cleveland  &  F.  C.  Ry.  Co.  (1907)  204  U.  S.  116, 
27  Sup.  Ct.  202,  51  L.  ed.  399. 

193  See  dissenting  opinion  in  Madisonville  T.  Co.  v.  St.  Bernard  M.  Co. 


240  DUE  PROCESS  CLAUSES— DISCUSSION. 

Whether  a  similar  rule  might  be  properly  based  upon  the 
provision  for  the  equal  protection  of  the  laws  is  a  ques- 
tion which  we  need  not  consider  in  the  present  chapter. 

Later  cases. 

125.  We  have  noted  at  some  length  the  reasons  given 
for  the  decision  in  Chicago,  B.  &  Q.  E.  Co.  v.  Chicago/''^ 
because  that  case  is  frequently  cited  in  later  cases  as  the 
authority  for  the  proposition  that  the  payment  of  just 
compensation  when  private  property  is  taken  for  public 
use  is  essential  to  due  process  of  law.  In  Chicago,  B.  & 
Q.  Ry.  Co.  V.  People,^^^  however,  in  support  of  the  state- 
ment that ' '  The  constitutional  requirement  of  due  process 
of  law,  which  embraces  compensation  for  private  prop- 
erty taken  for  public  use,  applies  in  every  case  of  the  ex- 
ertion of  governmental  power.  If,  in  the  execution  of 
any  power,  no  matter  what  it  is,  the  government,  federal 
or  state,  finds  it  necessary  to  take  private  property  for 
public  use,  it  must  obey  the  constitutional  injunction  to 
make  or  secure  just  compensation  to  the  owner,"  the 
court  cites  merely  three  cases  which  relate  strictly  to  the 
just  compensation  provision  of  the  Fifth  Amendment  and 
one  case  which  involves  a  provision  for  just  compensa- 
tion in  a  state  constitution.  Those  cases  obviously  do  not 
justify  the  making  of  such  a  statement  by  the  court.  ^^^ 

(1905)    196  U.  S.  239,  260,  25  Sup.  Ct.  251,  259,  49  L.  ed.  462;  32  Am.  L. 
.'Reg.  N.  S.  1,  7;  24  Harv.  L.  Rev.  378;  21  Harv.  L.  Rev.  277;  Hairston  v. 
Danville  &  W.  Ry.  Co.  (1908)  208  U.  S.  598,  606,  28  Sup.  Ct.  331,  334,  52  L. 
ed.  637. 

104  (1897)   166  U.  S.  226,  17  Sup.  Ct.  581,  41  L.  ed.  979. 

195  (1906)   200  U.  S.  561,  593,  26  Sup.  Ct.  341,  350,  50  L.  ed.  596. 

196  See  also  note  198,  infra;  and  see  reference  in  Willcox  v.  Consolidated 
G.  Co^  (1909)  212  U.  S.  19,  44,  29  Sup.  Ct.  192,  196,  53  L.  ed.  382,  to  Mon- 
ongahela  N.  Co.  v.  United  States  (1893)  148  U.  S.  312,  13  Sup.  Ct.  622,  37 
L.  ed.  463,  which  arose  under  the  Fifth  Amendment. 


JUST  COMPENSATION.  241 

General  comment  on  position  of  court. 

126.  The  opinions  in  a  number  of  the  cases  in  which  the 
court  has  declared  that  the  due  process  clause  of  the  Four- 
teenth Amendment  requires  the  payment  of  just  compen- 
sation when  private  property  is  taken  for  public  use  ^^"^ 
were  written  by  a  justice  who  declared  repeatedly  in  dis- 
senting- opinions  in  other  cases  that  the  Fourteenth 
Amendment  imposed  upon  the  states  the  restraints  which 
the  first  eight  Amendments  had  imposed  upon  the  federal 
government,^  ^^  a  position  which  the  majority  of  the  court 
has  repeatedly  repudiated.  ^^^ 

And  against  the  decisions  which  we  have  been  consid- 
ering under  the  present  topic  there  may  also  be  brought 
the  further  criticism  that  when  the  court  declares  that  the 
due  process  provision  of  the  Fourteenth  Amendment  in- 
cludes a  requirement  of  just  compensation,  then,  unless 
that  provision  differs  in  meaning  from  the  provision  in 
the  Fifth  Amendment,-*^ *^  the  court  necessarily  assumes 
that  the  framers  of  the  Fifth  Amendment  made  an  un- 
necessary provision  when  they  secured  due  process  and 
just  compensation  in  separate  terms,  and  that  when  the 
former  provision  was  transferred  to  the  Fourteenth 
Amendment  and  the  latter  was  not  the  adopters  of  that 

197  E.  g.,  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  (1897)  166  U.  S.  226,  17  Sup. 
Ct.  581,  41  L.  ed.  979;  Chicago,  B.  &  Q.  Ry.  Co.  v.  People  (1906)  200  U.  S. 
561,  26  Sup.  Ct.  341,  50  L.  ed.  596;  Smyth  v.  Ames  (1898)  171  U.  S.  361,  18 
Sup.  Ct.  488,  43  L.  ed.  197,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819; 
Norwood  V.  Baker  (1898)   172  U.  S.  269,  19  Sup.  Ct.  187,  43  L.  ed,  443. 

198  See,  e.  g.,  Hurtado  v.  California  (1884)  110  U.  S.  516,  4  Sup.  Ct.  Ill, 
292,  28  L.  ed.  232;  O'Neil  v.  Vermont  (1892)  144  U.  S.  323,  370,  12  Sup.  Ct. 
693,  711,  36  L.  ed.  450;  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  20  Sup.  Ct. 
448,  494,  44  L.  ed.  597;  Patterson  v.  Colorado  (1907)  205  U.  S.  454,  27  Sup. 
Ct.  556,  51  L.  ed.  879.     See  also  note  163,  supra. 

199 See,  e.  g..  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  29  Sup.  Ct.  14, 
53  L.  ed.  97. 

200  On  this  point  see  sees.  54,  55,  supra. 

i6 


242  DUE  PROCESS  CLAUSES— DISCUSSION. 

Amendment  tliought  that  they  were  securing  the  full  pro- 
tection of  both  provisions.  And  while  the  court  has  not 
considered  it  necessary  to  state  these  assumptions  in  ex- 
press terms,  much  less  to  defend  them,  their  validity  is 
decidedly  questionable.^"^ 

TEXT  AND  CONTEXT. 

The  significance  of  the  context. 

127.  On  looking  at  the  context  of  the  due  process  clause 
of  the  Fifth  Amendment  it  will  be  observed  that  the  pre- 
ceding clauses  and  the  succeeding  Amendment  deal  ex- 
clusively with  the  conduct  of  criminal  trials,  thus  tending 
to  show  by  mere  association  that  the  clause  deals  solely 
with  procedure.  Indeed,  the  only  apparent  objection  to 
deriving  this  interpretation  from  the  context  lies  in  the 
fact  that  the  due  process  clause  is  immediately  followed 
by  a  provision  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation.  And  at  first 
glance  the  presence  of  the  just  compensation  provision 
seems  to  make  it  impossible  to  draw  an  interpretation  of 
the  due  process  clause  from  its  context. 

But  if  we  consider  the  probability  of  some  logical  con- 
nection between  contiguous  clauses  of  the  same  Amend- 
ment and  examine  the  provisions  more  closely  with  this 
thought  in  mind  we  shall  see  that  the  apparent  difficulty 
is  not  a  real  one.  If  the  due  process  clause,  like  the  pre- 
ceding clauses  of  the  Fifth  Amendment,  deals  with  the 
conduct  of  criminal  trials  and  with  a  taking  by  the  pub- 

201  See  cases  in  note  53,  supra,  and  also  Fallbrook  Irr.  Dist.  v.  Bradley 
(1896)  164  U.  S.  112,  158,  17  Sup.  Ct.  56,  63,  41  L.  ed.  369;  dissenting  opin- 
ion in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota  (1890)  134  U.  S.  418,  465, 
10  Sup.  Ct.  462,  705,  33  L.  ed.  970.  In  this  connection,  however,  consider 
end  of  note  160,  supra,  with  cases  in  note  158,  supra. 


TEXT  AND  CONTEXT.  243 

lie  in  order  to  punish,  it  may  be  naturally  followed  by  a 
provision  relating  to  a  taking  by  tbe  public,  not  in  order 
to  punish  but  because  the  public  wants  the  thing  taken. 
There  is  just  such  a  contrast  in  thought  between  the  two 
clauses  as  to  make  it  natural  to  place  them  together.  And 
we  must  notice  that  only  on  that  interpretation  of  the 
due  process  clause  does  it  belong  logically  in  that  portion 
of  the  Constitution  in  which  it  was  placed;  and  only  on 
that  interpretation  of  the  due  process  clause  was  it  logical 
to  place  the  just  compensation  provision  immediately 
after  the  due  process  provision. 

Moreover,  it  is  significant  that  it  is  not  only  in  the  Fed- 
eral Constitution  that  the  due  process  clause  is  so  placed, 
but,  as  an  able  writer  in  the  Harvard  Law  Review  has 
declared  with  reference  to  the  state  constitutions  also,  the 
provision  with  which  we  are  dealing  is  "in  almost  every 
instance  inserted  in  a  section  of  the  constitution  dealing 
exclusively  with  the  conduct  of  criminal  trials.  "^"^^ 

And  the  reference  to  the  deprivation  of  life  in  the  due 
process  clause  shows  clearly  that  the  clause  is  one  which 
relates  to  the  enforcement  of  law. 

The  true  meaning  of  the  term  "liberty." 

128.  The  author  whom  we  have  just  quoted  has  pointed 
out  steps  by  which  the  provision  of  Magna  Carta  that 
"no  freeman  shall  be  taken  or  imprisoned  ....  un- 
less by  the  lawful  judgment  of  his  peers  and^*^^  by  the 

202  Shattuck,  The  True  Meaning  of  the  Term  "Liberty"  in  Those  Clauses 
in  the  Federal  and  State  Constitutions  Which  Protect  "Life,  Liberty  and 
Property,"  4  Harv.  L.  Rev.  365,  at  369.  See  also  Corwin,  The  Doctrine  of 
Due  Process  of  Law  Before  the  Civil  War,  24  Harv.  L.  Rev.  366,  at  372; 
Boudin,  Government  by  Judiciary,  26  Pol.  Sci.  Quar.  238,  265;  Green 
County  V.  Quinlan  (1909)  211  U.  S.  582,  594,  29  Sup.  Ct.  162,  167,  53  L. 
ed.  335. 

203  On  this  word  see  McKechnie,  Magna  Carta,  436,  442,  443. 


244  DUE  PROCESS  CLAUSES— DISCUSSION. 

law  of  the  land"  has  become  our  due  process  provision 
and  shown  that  the  term  "liberty"  when  used  in  connec- 
tion with  the  due  process  requirement  means  "nothing- 
more  or  less  than  freedom  of  the  person  from  restraint,— 
the  great  Habeas  Corpus  principle  of  Anglican  liberty,— 
a  right  the  illegal  invasion  of  which  gives  rise  to  an  ac- 
tion of  false  arrest  or  imprisonment. ' '  ^^'^  And  he  has,  by 
an  examination  of  other  provisions  of  our  constitutions, 
shown  abundant  reasons  for  saying  that  the  term  "lib- 
erty" was  so  understood  when  placed  in  this  portion  of 
the  Federal  Constitution.-"^ 

204  Ubi  supra,  4  Harv.  L.  Rev.  at  382;  and  see  ibid.  376;  Corwin,  ubi 
supra,  24  Harv.  L.  Rev.  366,  372,  467,  468,  474;  Hand,  Due  Process  of  Law 
and  the  Eight  Hour  Day,  21  Harv.  L.  Rev.  495. 

205  Ubi  supra,  4  Harv.  L.  Rev.  at  369,  380-382.  And  on  the  meaning  of 
the  term  "liberty"  see  also  book  review  in  12  Harv.  L.  Rev.  at  440;  Ex 
parte  Boyce  (1904)  27  Nev.  299,  354,  75  Pac.  1,  12,  65  L.  R.  A.  47,  64; 
Baldwin,  The  Courts  as  Conservators  of  Social  Justice,  9  Col.  L.  Rev.  567, 
569.  Compare  Prentice,  Congress  and  the  Regulation  of  Corporations,  19 
Harv.  L.  Rev.  at  180  et  seq.;  Mitchel  v.  Reynolds  (1711)  1  P.  Williams, 
181,  188;  Coke,  Institutes,  II,  *47;  Corwin,  The  Supreme  Court  and  Uncon- 
stitutional Acts  of  Congress,  4  Mich.  L.  Rev.  at  626.  The  term  "liberty" 
is  also  used  in  a  different  sense  in  English  law  as  meaning  a  franchise  or 
privilege:  see  McKechnie,  Magna  Carta,  445;  Dominus  Rex  v.  Kilderby 
(1671)  1  Saund.  312;  Ritchie,  Natural  Rights,  7;  4  Harv.  L.  Rev.  372, 
note;  ibid.  375.  The  meanings  should  no  more  be  confused  than  should  the 
general  power  of  Congress  to  lay  duties  be  construed  as  a  general  power 
to  say  what  it  shall  be  the  duty  of  men  to  do.  Nor  should  either  meaning 
be  confuped  with  that  which  has  been  given  to  the  term  by  the  United 
States  Supreme  Court  and  which  we  shall  consider  at  once.  If  the  word 
"liberty"  had  a  definite  meaning  when  used  in  a  due  process  provision, 
meanings  which  it  had  in  other  connections  are  irrelevant. — The  connec- 
tion in  which  a  term  is  used  is  important.  It  is  said  that  Dean  Swift  once 
based  a  sermon  against  the  style  of  hair-dressing  in  favor  with  the  women 
of  his  day  upon  that  part  of  Matt,  xxiv,  17  ("Let  him  which  is  on  the 
house-top  not  come  down  to  take  anything  out  of  his  house")  which  reads 
"top-knot  come  down."  So  also  a  biographer  of  the  great  Chief  Justice 
might  say  that  Magna  Carta  was  granted  on  the  advice  of  John  Marshall, 
and  his  statement  would  be  literally  true.  On  this  see  Green  County  v. 
Quinlan  (1909)  211  U.  S.  582,  594,  29  Sup.  Ct.  162,  167,  53  L.  ed.  335;  24 
Harv.  L.  Rev.  at  474. 


TEXT  AND  CONTEXT.  245 

The  position  of  the  court  on  the  term  * 'liberty." 

129.  The  United  States  Supreme  Court,  however,  in  re- 
cent cases  has  given  a  far  different  interpretation  to  that 
term,  and  incidentally  to  the  entire  due  process  provision, 
both  in  the  Fifth  Amendment  ^^^  and  in  the  Fourteenth 
Amendment,^ °'^  the  court  saying  in  Allgeyer  v.  Louisi- 

206  Adair  v.  United  States  (1908)  208  U.  S.  161,  28  Sup.  Ct.  277,  52  L. 
ed.  436.  Compare  Second  Employers'  Liability  Cases — Mondou  v.  New  Y., 
N.  H.  &  H.  E.  Co.  (1912)  223  U.  S.  1,  52,  32  Sup.  Ct.  169,  176,  56  L.  ed. 
327;  Baltimore  &  0.  K  Co.  v.  Interstate  Com.  Comn.  (1911)  221  U.  S. 
612,  619,  31  Sup.  Ct.  621,  625,  55  L.  ed.  878;  Lottery  Case— Champion  v. 
Ames  (1903)  188  U.  S.  321,  357,  23  Sup.  Ct.  321,  327,  47  L.  ed.  492;  Addy- 
ston  P.  &  S.  Co.  V.  United  States  (1899)  175  U.  S.  211,  228,  229,  20  Sup. 
Ct.  96,  103,  44  L.  ed.  136;  United  States  v.  Joint  T.  Assn.  (1898)  171  U.  S. 
505,  572,  19  Sup.  Ct.  25,  33,  43  L.  ed.  259 ;  and  also  Buttfield  v.  Stranahan 
(1904)   192   U.  S.  470,  493,    24  Sup.  Ct.  349,  354,  48  L.  ed.  252. 

207 Allgeyer  v.  Louisiana  (1897)  165  U.  S.  578,  589,  17  Sup.  Ct.  427, 
431,  41  L.  ed.  832;  Lochner  v.  New  York  (1905)  198  U.  S.  45,  53,  25  Sup. 
Ct.  539,  541,  49  L.  ed.  937;  and  see  Chicago,  B.  &  Q.  E.  Co.  v.  McGuire 
(1911)  219  U.  S.  549,  567,  31  Sup.  Ct.  259,  262,  55  L.  ed.  328;  Brodnax  v. 
Missouri  (1911)  219  U.  S.  285,  293,  31  Sup.  Ct.  238,  240,  55  L.  ed.  219; 
House  V.  Mayes  (1911)  219  U.  S.  270,  284,  31  Sup.  Ct.  234,  237,  55  L.  ed. 
213;  Grenada  L.  Co.  v.  Mississippi  (1910)  217  U.  S.  433,  442,  30  Sup.  Ct. 
535,  539,  54  L.  ed.  826;  Williams  v.  Arkansas  (1910)  217  U.  S.  79,  30  Sup. 
Ct.  493,  54  L.  ed.  673;  McLean  v.  Arkansas  (1909)  211  U.  S.  539,  545,  29 
Sup.  Ct.  206,  207,  53  L.  ed.  315;  Muller  v.  Oregon  (1908)  208  U.  S.  412, 
421,  28  Sup.  Ct.  324,  326,  52  L.  ed.  551;  Jacobson  v.  Massachusetts  (1905) 
197  U.  S.  11,  26,  29,  25  Sup.  Ct.  358,  361,  362,  49  L.  ed.  643;  Smiley  v. 
Kansas  (1905)  196  U.  S.  447,  456,  25  Sup.  Ct.  289,  291,  49  L.  ed.  546; 
Booth  V.  Illinois  (1902)  184  U.  S.  425,  428,  22  Sup.  Ct.  425,  426,  46  L.  ed. 
623;  W.  W.  Cargill  Co.  v.  Minnesota  (1901)  180  U.  S.  452,  467,  21  Sup. 
Ct.  423,  429,  45  L.  ed.  619;  Williams  v.  Fears  (1900)  179  U.  S.  270,  274, 
21  Sup.  Ct.  128,  129,  45  L.  ed.  186;  Mutual  L.  Co.  v.  Martell  (1911)  222 
U.  S.  225,  235,  32  Sup.  Ct.  74,  75,  56  L.  ed.  175;  dissenting  opinion  in 
Taylor  and  Marshall  v.  Beckham  (1900)  178  U.  S.  548,  603,  20  Sup.  Ct. 
890,  1016,  44  L.  ed.  1187.  Compare  Northwestern  N.  L.  I.  Co.  v.  Eiggs 
(1906)  203  U.  S.  243,  255,  27  Sup.  Ct.  126,  129,  51  L.  ed.  168;  Berea  Col- 
lege V.  Kentucky  (1908)  211  U.  S.  45,  29  Sup.  Ct.  33,  53  L.  ed.  81;  Heath 
&  Milligan  Mfg.  Co.  v.  Worst  (1907)  207  U.  S.  338,  357,  28  Sup.  Ct.  114, 
120,  52  L.  ed.  236;  Western  T.  Assn.  v.  Greenberg  (1907)  204  U.  S.  359,  27 
Sup.  Ct.  384,  51  L.  ed.  520;  Schmidinger  v.  Chicago  (1913)  226  U.  S.  578, 
589,  33  Sup.  Ct.  182,  185,  57  L.  ed.  364;  Atlantic  C.  L.  E.  Co.  v.  Eiverside 
Mills  (1911)  219  U.  S.  186,  202,  31  Sup.  Ct.  164,  169,  55  L.  ed.  167;  Noble 


246  DUE  PROCESS  CLAUSES— DISCUSSION. 

ana^^*  that  the  liberty  mentioned  ''means  not  only  the 
right  of  the  citizen  to  be  free  from  the  mere  physical  re- 
straint of  his  person,  as  by  incarceration,  but  the  term  is 
deemed  to  embrace  the  right  of  the  citizen  to  be  free  in 
the  enjoyment  of  all  his  faculties ;  to  be  free  to  use  them  in 
all  lawful  ways;  to  live  and  work  where  he  will;  to  earn, 
his  livelihood  by  any  lawful  calling;  to  pursue  any  liveli- 
hood or  avoeation,  and  for  that  purpose  to  enter  into  all 
contracts  which  may  be  proper,  necessary  and  essential  to 
his  carrying  out  to  a  successful  conclusion  the  purposes 
above  mentioned."  While  later  decisions  have  made 
somewhat  clearer  the  effect  which  the  court  gives  to  the 
term  "liberty,"  the  opinions  usually  refer  back  to  the 
Allgeyer  case. 

Allgeyer  v.  Louisiana. 

130.  The  importance  of  that  decision,  however,  is  weak- 
ened by  the  character  of  the  opinion.  The  language  which 
we  have  quoted  shows  confusion  of  thought.  The  court 
alternates  between  the  omission  and  the  use  of  the  word 
"lawful"  in  the  several  phrases.  The  unqualified  state- 
state  Bank  v.  Haskell  (1911)  219  U.  S.  104,  110,  111,  31  Sup.  Ct.  186, 
187,  188,  55  L.  ed.  112. — Of  decisions  which  were  similar  to  that  in  Lochner 
V.  New  York,  supra,  Professor  Seager  has  said  that  they  have  "implanted 
in  the  minds  of  workingmen  a  thorough  distrust  of  the  courts:"  The  At- 
titude of  American  Courts  Towards  Restrictive  Labor  Laws,  19  Pol.  Sci. 
Quar.  589.  See  also  G.  W.  Alger,  Moral  Overstrain,  essay  entitled  "Some 
Equivocal  Rights  of  Labor;"  Seager,  Introduction  to  Economics,  sec.  236; 
Roe,  Our  Judicial  Oligarchy,  10,  11,  15,  37;  Pound,  Liberty  of  Contract, 
18  Yale  L.  Jour.  454,  487;  Pound,  Common  Law  and  Legislation,  21  Harv. 
L.  Rev.  383,  384;  Alger,  The  Old  Law  and  the  New  Order,  166,  167,  253, 
254;  Alger,  The  Law  and  Industrial  Inequality,  7  The  Brief,  1,  10,  11; 
White,  Government  Control  of  Transportation  Charges,  38  Am.  L.  Reg. 
N.  S.  at  296;  book  review  24  Pol.  Sci.  Quar.  318,  319;  Boudin,  Government 
by  Judiciary,  26  Pol.  Sci.  Quar.  238,  265,  266;  editorial  The  Menace  of 
Law,  The  Independent,  Aug.,  1912,  281. 

208  (1897)   165  U.  S.  578,  589,  17  Sup.  Ct.  427,  431,  41  L.  ed.  832. 


TEXT  AND  CONTEXT.  247 

ments  of  freedom  from  restraint  are  certainly  incorrect, 
for  it  is  clear  that  some  restraints  may  constitutionally  be 
imposed.  And,  on  the  other  hand,  the  statement  that 
men  may  do  anything  which  is  lawful,  while  obviously 
correct,  does  not  solve  the  question  under  consideration, 
for  it  does  not  show  what  are  the  limitations  upon  the  re- 
straining power  of  the  law-making  department  of  govern- 
ment. 

The  decision  in  the  Allgeyer  case  was  based  upon  the 
language  of  Justice  Bradley  in  Butchers'  U.  Co.  v.  Cres- 
cent C.  Co.^°^  in  an  opinion  which  did  not  receive  the 
approval  of  a  majority  of  the  court  and  which  if  approved 
would  have  meant  the  reversal  of  an  earlier  decision  of 
the  court  from  which  Justice  Bradley  had  dissented,^  ^^ 
and  upon  a  dictum  which  a  justice  who  had  concurred  in 
Justice  Bradley's  opinion  in  the  Butchers'  Union  case  had 
placed  in  the  opinion  in  Powell  v.  Pennsylvania.^^  ^  The 
bulk  of  the  language  quoted  above  was  copied  almost  ver- 
batim from  an  opinion  of  the  New  York  Court  of  Ap- 
peals ^^^  which  in  turn  refers  approvingly  to  the  before- 

209  (1884)  111  U.  S.  746,  764,  765,  4  Sup.  Ct.  652,  657,  658,  28  L.  ed. 
585.  The  use  in  the  Declaration  of  Independence  of  the  terms  "liberty" 
and  "pursuit  of  happiness"  together  certainly  does  not  show  that  the  mean- 
ing of  the  latter  term,  which  is  omitted  from  the  due  process  clause,  is  in- 
cluded in  the  meaning  of  the  former  term. — It  is  not  clear  that  the  attitude 
towards  government  when  the  Fifth  Amendment  or  the  Fourteenth  Amend- 
ment was  adopted  was  precisely  the  same  as  that  which  from  a  few  pre- 
fatory words  in  the  Declaration  of  Independence  we  may  possibly  think 
was  taken  in  1776.  Did  the  people  who  adopted  those  Amendments  show 
no  paternalistic  sentiments  through  their  representatives  in  Congress? 

210  Part  of  the  language  quoted  in  the  Allgeyer  case  was  directly  in  con- 
flict with  the  decision  in  the  Slaughter  House  Cases  (1872)  16  Wall.  36,  on 
a  point  concerning  which  the  court  said  in  Twining  v.  New  Jersey  (1908) 
211  U.  S.  78,  96,  29  Sup.  Ct.  14,  18,  53  L.  ed,  97,  "This  part  at  least  of  the 
Slaughter  House  Cases  has  been  steadily  adhered  to  by  this  court." 

211  (1888)   127  U.  S.  678,  684,  7  Sup.  Ct.  992,  1257,  995,  32  L.  ed.  253. 

212  In  re  Jacobs  (1885)  98  N.  Y.  98.  On  the  disastrous  effect  of  the  de- 
cision in  the  New  York  case  see  Kelley,  Some  Ethical  Gains  Through  Leg- 


248  DUE  PKOCESS  CLAUSES— DISCUSSION. 

mentianed  opinion  of  Justice  Bradley  in  the  Butchers' 
Union  case,  to  an  opinion  by  the  same  justice  in  circuit 
court  which  declared  unconstitutional  a  law  which  the 
Supreme  Court  afterwards  declared  constitutional,  and 
to  a  dissenting  opinion  by  Justice  Field.  No  other  re- 
marks by  justices  of  the  United  States  Supreme  Court  on 
* '  liberty ' '  are  referred  to  in  the  opinion  of  the  New  York 
court."^^  There  is,  therefore,  but  little  basis  in  precedent 
for  the  decision  in  the  Allgeyer  case. 

CONCLUSION. 

Position  of  the  court  criticised. 

131.  In  reaching  the  interpretation  which  the  court  has 
given  to  the  due  process  clauses  it  has  been  necessary  for 
the  court  to  ignore  the  presence  in  those  clauses  of  the 
words  ''without  due  process  of  law,"  although  the  very 
phraseology  of  the  provision  shows  that  it  was  the  inten- 
tion of  those  who  adopted  the  Amendments  to  permit  the 
deprivation  by  due  process  of  law  of  rights  of  which  no 
person  might  be  deprived  otherwise.^^^ 

islation,  253.  See  also  Alger,  The  Old  Law  and  the  New  Order,  166,  167; 
Roe,  Our  Judicial  Oligarchy,  10,  11;  Alger,  The  Law  and  Industrial  Equal- 
ity, 69  Alb.  L.  J.  121,  126. 

213  It  may  be  added  that  the  court  does  quote  federal  authorities  on 
judicial  inquiry,  not  into  the  exercise  of  the  enumerated  powers  of  Con- 
gress, but  into  the  exercise  of  what  are  called  the  implied  powers — inquiry 
whether  powers  which  it  is  claimed  are  impliable  from  the  enumerated 
powers  of  Congress  are  in  reality  so  impliable.  But  it  does  not  appear  how 
the  question,  which  is  sometimes  raised  by  federal  statutes,  can  be  raised 
by  state  legislation.  Unless  New  York  is  different  from  most  states,  its 
•legislature  is  unlike  Congress  in  that  the  legislature  has  all  powers  which 
are  not  denied  to  it  expressly  or  by  necessary  implication  from  grants  to 
other  departments  of  government.  The  bearing  of  those  quotations  upon 
state  legislation  is  not  apparent. — On  implied  powers  see  also  note  119, 
supra. 

214  See  Corwin,  The  Doctrine  of  Due  Process  of  Law  Before  the  Civil 


CONCLUSION.  249 

Moreover,  its  interpretation  was  given  without  any 
consideration  of  the  context  of  the  due  process  provision. 
The  court  approached  the  question  in  dealing  with  the 
Fourteenth  Amendment,  where  the  context  is  not  instruc- 
tive. But  as  the  context  of  the  provision  in  the  Four- 
teenth Amendment  does  not  show  that  its  meaning  there 
is  different  from  its  meaning  in  the  Fifth  Amendment,  it 
seems  clear  that  any  light  which  the  context  casts  upon 
the  meaning  in  the  earlier  Amendment  should  apply  to  the 
meaning  in  the  subsequent  Amendment,  for  the  court  in- 
terprets the  clauses  in  both  Amendments  alike.^^^  And 
not  only  has  the  court  not  considered  the  context  of  the 
due  process  provision,  but  it  has  not  considered  the  his- 
torical meaning  of  the  provision  or  even  some  of  the 
earlier  decisions  of  the  court  itself.^  ^^ 

It  is  possible  that  if  such  matters  were  properly  brought 
to  the  attention  of  the  court  the  question  would  be  re- 
examined.   Certainly  it  is  the  duty  of  the  court,  when  in- 

War,  24  Harv.  L.  Rev.  at  467,  468,  474;   Missouri  P.  Ry.  Co.  v.  Humes 
(1885)   115  U.  S.  512,  520,  6  Sup.  Ct.  110,  112,  29  L.  ed.  463. 

215  See  sec.  54,  supra. 

216  See  comment  of  C.  E.  Shattuck,  in  4  Harv.  L.  Rev.  at  386,  on  the  de- 
cision in  the  Slaughter  House  Cases  (1872)  16  Wall.  36:  "The  court  did 
not,  apparently,  consider  it  even  arguable  that  the  restraint  upon  follow- 
ing their  lawful  calling  was  a  deprivation  of  'liberty.'  Moreover,  the  de- 
cision does  not  rest,  so  far  as  this  clause  is  concerned,  upon  the  ground  that 
the  act  was  a  fair  exercise  of  the  police  power,  and  so  was  due  process  of 
law.  It  proceeds  on  the  ground  that  the  Fourteenth  Amendment  has  no 
application  whatever  to  such  a  right  as  that  contended  for,  namely,  the 
right  of  every  man  to  pursue  a  lawful  occupation.  So  that  the  actual  de- 
cision in  the  case  is  against,  rather  than  in  favor  of,  the  broad  construc- 
tion of  the  term  'liberty.' "  See  also  the  comment  of  that  author  on  the 
decision  in  Bradwell  v.  State  (1872)  16  Wall.  130,  21  L.  ed.  442.— Mc- 
Gehee,  Due  Process  of  Law,  138  et  seq.,  quotes  in  the  text  two  passages 
from  opinions  of  Justice  Field  which  the  notes  show  to  be  dissenting  opin- 
ions; and  Stimson,  Federal  and  State  Constitutions  of  the  United  States, 
32,  quotes  from  a  dissenting  opinion  of  Justice  Field  with  the  misstate- 
ment that  it  was  the  opinion  of  the  court.  The  position  which  the  court 
has  taken  in  recent  cases  was  not  taken  by  the  court  in  earlier  cases. 


250  DUE  PROCESS  CLAUSES— DISCUSSION. 

tei*preting  provisions  of  the  Constitution,  to  ascertain 
whether  the  terms  had  established  meanings  when  placed 
in  the  Constitution  and,  if  so,  to  apply  them  in  accordance 
with  those  meanings.-^"^  And  it  seems  clear  that  when 
the  due  process  provision  was  placed  in  the  Federal  Con- 
stitution it  referred  simply  to  those  deprivations  which 
are  usually  made  by  way  of  punishment  and  that  it  refer- 
red simply  to  the  procedure  which  must  be  observed  in 
determining  whether  the  law  has  been  violated. 

Should  the  court  now  take  the  correct  position? 

132.  One  point  remains  for  our  final  consideration.  It 
may  be  admitted  that  when  the  due  process  provision  was 
placed  in  the  Federal  Constitution  it  did  not  refer  to  sub- 
stantive law.  It  may  be  admitted  that  upon  every  occa- 
sion upon  which  the  Supreme  Court  nullifies  a  law  by  de- 
claring that  the  provision  does  deal  with  substantive  law 
it  assumes  a  power  which  those  who  adopted  the  provi- 
sion never  intended  to  bestow  upon  the  court.  And  yet  it 
may  be  claimed  that  the  interpretation  of  the  due  process 
provision  has  been  settled  by  repeated  judicial  decisions 
and  that  a  change  in  its  interpretation  would  result  in  a 
large  amount  of  confusion. 

In  reply  it  is  sufficient  to  point  to  the  present  state  of  the 
decisions  concerning  the  due  process  clauses.^^^  Would 
the  law  become  more  confused  if  the  clauses  were  inter- 
preted correctly?  Or  has  ''the  gradual  process  of  judicial 
inclusion  and  exclusion"  along  present  lines  already  wov- 
en a  tangled  web  of  inconsistent  decisions,  which  shows 
every  sign  of  becoming  more  and  more  tangled  as  time 
goes  on? 

217  See  note  11  in  Chapter  3,  supra. 

218  See,  e.  g.,  sees.  70,  67,  63,  71,  92,  105,  106,  supra. 


CHAPTER  V. 

THE  EQUAL  PROTECTION  PROVISION. 

INTRODUCTORY. 

133.  The  clause  stated. 

134.  The  organs  of  government  restrained. 

135.  The  "persons"  protected. 

GENERAL  EXTENT  OF  RESTRAINT. 

136.  Clause  forbids  some  state  actions  as  well  as  omissions  to  act. 

137.  Discrimination  which  is  forbidden. 

138.  Illustrations. 

139.  Classification  which  is  permitted. 

140.  Wide  range  of  legislative  discretion. 

BEARING  OF  PROVISION  ON  RATE  REGULATION. 

141.  In  general. 

142.  Power  to  limit  rates. 

143.  Classification  of  railroads  for  rate  regulation. 

144.  Other  regulations  of  railroads. 

145.  EXCESSIVE  PENALTIES. 

146.  REASONABLENESS  AND  JUST  COMPENSATION. 

INTRODUCTORY. 

The  clause  stated. 

133.  The  Fourteenth  Amendment  provides  that  no  state 
shall ' '  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. ' ' 

The  organs  of  government  restrained. 

134.  Tliis  provision  obviously  relates  to  the  state  gov- 
ernments and  does  not  restrain  the  federal  government.^ 

1  See  sec.  53,  supra. 

251 


252         THE  EQUAL  PROTECTION  PROVISION. 

It  applies  to  action  by  the  state  itself  through  its  consti- 
tution and  it  applies  to  action  by  any  organ  of  state  gov- 
ernment. This  is  true  whether  the  action  is  by  the  legisla- 
ture or  the  judiciarj^  or  the  officers  of  the  central  admin- 
istration, although  acts  by  municipalities  or  subordinate 
officers  or  private  individuals,  unless  authorized  or  until 
supported  by  the  state  authorities,  do  not  come  within  the 
purview  of  the  Constitution.^ 

The  "persons"  protected. 

135.  The  term  "persons"  in  the  equal  protection  pro- 
vision includes  natural  persons  as  a  matter  of  course. 
The  court  has  also  decided  repeatedly  that  the  term  in- 
cludes within  its  scope  corporations,  both  domestic  and 
foreign,  although  the  rights  of  those  corporations  may  be 
in  some  respects  less  than  the  rights  of  natural  persons.^ 

GENERAL  EXTENT  OF  RESTRAINT. 

Clause  forbids  some  state  actions  as  well  as  omissions  to 
act. 

136.  The  main  purpose  of  those  who  adopted  the  Four- 
teenth Amendment  was  doubtless  to  make  sure  that  the 
states  would  give  tO'  the  freedmen  the  same  protection  as 
it  gave  to  other  persons  against  oppression  by  their  fel- 
low-citizens.^   And  in  one  respect  this  main  purpose  has 

2  The  word  "state"  unquestionably  has  the  same  meaning  in  the  equal 
protection  clause  as  it  has  in  the  due  process  clause  of  the  Fourteenth 
Amendment.  Decisions  showing  its  meaning  in  the  latter  clause  are  cited 
in  section  58,  supra. 

3  See  note  2,  supra,  and  cases  in  section  57,  supra. 

4  See  Slaughter  House  Cases  (1872)  16  Wall.  36,  81,  21  L.  ed.  394;  Ex 
parte  Virginia  (1879)  100  U.  S.  339,  344,  345,  25  L.  ed.  676;  Plessy  v.  Fer- 
guson (1896)  163  U.  S.  537,  543,  544,  16  Sup.  Ct.  1138,  1140,  41  L.  ed.  256; 
and  also  Collins,  The  Fourteenth  Amendment  and  the  States,  126,  127.  It 
is  true,  however,  that  "of  the  six  hundred  and  four  cases  involving  the 


GENERAL  EXTENT  OF  RESTRAINT.  253 

been  strictly  observed.  Wlien,  soon  after  the  adoption 
of  the  Amendment,  Congress,  under  color  of  its  author- 
ity to  enforce  the  provision  by  appropriate  legislation, 
attempted  to  forbid  discriminator}^  action  by  individ- 
uals, that  legislation  was  declared  unconstitutional.  The 
court  decided  that  the  Amendment  relates  to  the  states 
and  that  it  has  no  direct  bearing  upon  the  conduct  of  in- 
dividuals.^ 

But  in  another  direction  the  Amendment  has  been 
given  a  very  sweeping  effect.  It  has  been  held  that  the 
Amendment  not  only  forbids  the  state  to  refuse  to  pro- 
tect all  persons  equally  against  the  misdeeds  of  their  fel- 
low-citizens but  that  it  also  forbids  the  state  itself  to  take 
positive  action  which  bears  unequally  upon  those  who 
are  subject  to  its  jurisdiction.  This  position  has  not  al- 
ways been  stated  felicitously.  Thus  it  has  been  said  that 
the  equal  protection  of  the  laws  means  the  protection  of 
equal  laws  *'— a  statement  which  makes  the  position  of  the 
court  depend  upon  a  distortion  of  the  wording  of  the 
Amendment.  The  same  result,  however,  could  be  reached 
by  a  more  correct  course  if  we  said  that  the  state  must 
not  only  afford  to  all  persons  equal  protection  against  the 
acts  of  other  persons  but  that  it  must  also  afford  to  all 
persons  equal  protection  against  the  acts  of  its  own  rep- 
resentatives. 

Fourteenth  Amendment  in  which  the  Supreme  Court  has  delivered  opin- 
ions since  1868,  only  twenty-eight  deal  with  questions  involving  the  negro 
race;  that  is  to  say,  less  than  five  per  cent  of  the  total  litigation  under  the 
Amendment:"  Collins,  ubi  supra,  46,  47.  "What  positive  gain  has  the 
operation  of  the  Fourteenth  Amendment  been  to  the  negro  race?  We  can 
point  to  nothing:"    Ibid.  76;  see  also  112,  129. 

5  See  note  25  in  Chapter  3,  supra.  Compare  Corwin,  The  Supreme  Court 
and  the  Fourteenth  Amendment,  7  Mich.  L.  Rev.  643,  645. 

6  See  German  A.  Ins.  Co.  v.  Hale  (1911)  219  U.  S.  307,  319,  31  Sup.  Ct. 
246,  249,  55  L.  ed.  229;  Southern  Ry.  Co.  v.  Greene  (1910)  216  U.  S.  400, 
412,  30  Sup.  Ct.  287,  289,  54  L.  ed.  536. 


254         THE  EQUAL  PROTECTION  PROVISION. 

Still,  however  the  position  of  the  court  is  stated,  but 
few  cases  have  arisen  under  the  equal  protection  provi- 
sion in  which  it  has  been  contended  that  a  state  had  vio- 
lated the  provision  by  a  discrimination  in  the  protection 
afforded  against  the  actions  of  private  individuals,  and 
many  cases  have  arisen  in  which  it  has  been  contended 
that  organs  of  state  government  had  by  positive  action 
injured  some  persons  by  improperly  discriminating 
against  them  and  had  for  that  reason  violated  the  equal 
protection  provision,  and  in  a  number  of  cases  such  con- 
tentions have  been  sustained. 

Discrimination  which  is  forbidden. 

137.  We  have,  then,  the  general  proposition  that  the 
equal  protection  provision  forbids  governmental  action 
which  discriminates  unjustifiably  against  particular  per- 
sons or  classes  of  persons.  Equal  security  must  be  given 
to  all  persons  under  like  circumstances  in  the  enjoyment 
of  their  personal  and  civil  rights.'^ 

It  is  true,  as  we  shall  see  later  on,^  that  the  legislature 
may  enact  legislation  which  is  limited  in  its  scope.  It 
may  classify  the  objects  of  legislation.  But  arbitrary  se- 
lection can  never  be  justified  by  calling  it  classification. 
The  classification  must  be  one  which  is  based  upon  some 
difference  which  bears  a  proper  relation  to  the  attempted 

7  Southern  ily.  Co.  v.  Greene  (1910)  216  U.  S.  400,  412,  30  Sup.  Ct.  287, 
289,  54  L.  ed.  536;  Raymond  v.  Chicago  T.  Co.  (1907)  207  U.  S.  20,  28  Sup. 
Ct.  7,  52  L.  ed.  78;  Connolly  v.  Union  S.  P.  Co.  (1902)  184  U.  S.  540,  22  Sup. 
Ct.  431,  46  L.  ed.  679;  Cotting  v.  Kansas  C.  S.  Y.  Co.  (1901)  183  U.  S.  79, 
102,  22  Sup.  Ct.  30,  40,  46  L.  ed.  92;  Holden  v.  Hardy  (1898)  169  U.  S. 
366,  398,  18  Sup.  Ct.  383,  390,  42  L.  ed.  780;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Ellis  (1897)  165  U.  S.  150,  159,  165,  17  Sup.  Ct.  255,  258,  261,  41  L.  ed.  666. 

8  Sees.  139,  140,  143,  infra. 


GENEEAL  EXTENT  OF  RESTRAINT.  255 

classification.^    It  must  not  be  a  mere  excuse  for  the  op- 
pression or  spoliation  of  a  particular  class.^*' 

Illustrations. 

138.  Thus,  as  was  pointed  out  in  a  case  which  was  cited 
with  approval  by  the  Supreme  Court,  "The  legislature 
may  fix  the  age  at  which  persons  shall  be  deemed  compe- 
tent to  contract  for  themselves,  but  no  one  will  claim  that 
competency  to  contract  can  be  made  to  depend  upon  stat- 
ure, or  color  of  the  hair."  ^^  So  also,  for  example,  it  has 
been  held  that  a  state  may  not  require  a  negro  prisoner 
to  submit  to  a  trial  by  a  jury  from  which  negroes  are  ex- 
cluded by  reason  of  their  race;  ^^  and  a  municipality  may 

9  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  (1897)  165  U.  S.  150,  159,  165,  17  Sup. 
Ct.  255,  258,  261,  41  L.  ed.  666;  Cotting  v.  Kansas  C.  S.  Y.  Co.  (1901)  183 
U.  S.  79,  102,  22  Sup.  Ct.  30,  40,  46  L.  ed.  92.  See  also  Magoun  v.  Illinois 
T.  &  S.  Bank  (1898)  170  U.  S.  283,  294,  18  Sup.  Ct.  594,  599,  42  L.  ed. 
1037.    Compare  sec.  140,  infra. 

lOHolden  v.  Hardy  (1898)  169  U.  S.  366,  398,  18  Sup.  Ct.  383,  390,  42 
L.  ed.  780.    See  also  cases  in  note  7,  supra. 

nSee  State  v.  Loomis  (1892)  115  Mo.  307,  314,  22  S.  W.  350,  351,  21 
L.  R.  A.  789,  cited  in  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  (1897)  165  U.  S. 
150,  156,  17  Sup.  Ct.  255,  257,  41  L.  ed.  666. 

l2Strauder  v.  West  Virginia  (1879)  100  U.  S.  303,  25  L.  ed.  664;  Bush 
V.  Kentucky  (1882)  107  U.  S.  110,  1  Sup.  Ct.  625,  27  L.  ed.  354;  Carter  v. 
Texas  (1900)  177  U.  S.  442,  20  Sup.  Ct.  687,  44  L.  ed.  839;  Rogers  v.  Ala- 
bama (1904)  192  U.  S.  226,  24  Sup.  Ct.  257,  48  L.  ed.  417.  See  also  Ex 
parte  Virginia  (1879)  100  U.  S.  339,  25  L.  ed.  676;  Brownsfield  v.  South 
Carolina  (1903)  189  U.  S.  426,  23  Sup.  Ct.  513,  47  L.  ed  882.  The  pris- 
oner, however,  cannot  go  further  than  this  and  insist  that  the  jury  be  com- 
posed, either  in  part  or  in  whole,  of  men  of  his  own  race:  Martin  v.  Texas 
(1906)  200  U.  S.  316,  26  Sup.  Ct.  338,  50  L.  ed.  497;  Virginia  v.  Rives 
(1879)  100  U.  S.  313,  25  L.  ed.  667;  Bush  v.  Kentucky  (1882)  107  U.  S. 
110,  1  Sup.  Ct.  625,  27  L.  ed.  354;  In  re  Shibuya  Jugiro  (1891)  140  U.  S. 
291,  297,  11  Sup.  Ct.  770,  772,  35  L.  ed.  510;  Gibson  v.  Mississippi  (1896) 
162  U.  S.  565,  16  Sup.  Ct.  904,  40  L.  ed.  1075.  See  also  Franklin  v.  South 
Carolina  (1910)  218  U.  S.  161,  30  Sup.  Ct.  640,  54  L.  ed.  980;  Thomas  v. 
Texas  (1909)  212  U.  S.  278,  29  Sup.  Ct.  393,  53  L.  ed.  512;  Tarrance  v. 
Florida  (1903)  188  U.  S.  519,  23  Sup.  Ct.  402,  47  L.  ed.  572;  Williams 
v.  Mississippi  (1898)   170  U.  S.  213,  18  Sup.  Ct.  454,  42  L.  ed.  1012. 


256  THE  EQUAL  PROTECTION  PROVISION. 

not,  in  regulating  business,  make  discriminations  which 
are  founded  on  differences  of  race.^^  A  classification  for 
taxation  which  divides  corporations  doing  exactly  the 
same  business  with  the  same  kind  of  property  into  for- 
eign and  domestic  and  subjects  the  foreign  corporations 
to  higher  taxation  denies  to  the  foreign  corporations  the 
equal  protection  of  the  laws.^^  And,  to  cite  the  cases  in 
which  we  are  most  interested,  a  state  may  not  require 
railroad  companies  to  transport  passengers  or  freight  at 
rates  which  are  unreasonably  low,  for  in  so  far  as  such 
corporations  are  denied  the  right,  while  others  are  per- 
mitted, to  receive  reasonable  profits  upon  their  invest- 
ments, those  corporations  are  deprived  of  the  equal  pro- 
tection of  the  laws.^^ 

Classification  which  is  permitted. 
139.  But  while  the  provision  forbids  governmental  ac- 

iSYick  Wo  V.  Hopkins  (1886)  118  U.  S.  356,  6  Sup.  Ct.  1064, "^0  L.  ed. 
220. 

14  Southern  Ry.  Co.  v.  Greene  (1910)  216  U.  S.  400,  412,  30  Sup.  Ct. 
287,  289,  54  L.  ed.  536.  Compare  Darnell  v.  Indiana  (1912)  226  U.  S.  390, 
398,  33  Sup.  Ct.  120,  121,  57  L.  ed.  267;  Selover,  Bates  &  Co.  v.  Walsh 
(1912)    226  U.  S.  112,  125,  33  Sup.  Ct.  69,  72,  57  L.  ed.  146;   Aluminum 

Co.  V.  Ramsey  (1911)  222  U.  S.  251,  256,  32  Sup.  Ct,  76,  77,  56  L.  ed.  185. 

15  Ex  parte  Young  (1908)  209  U.  S.  123,  28  Sup.  Ct.  441,  52  L.  ed.  714, 
13  L.  R.  A.  N.  S.  932;  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S. 
684,  19  Sup.  Ct.  565,  43  L.  ed.  858;  Smyth  v.  Ames  (1898)  169  U.  S.  466, 
18  Sup.  Ct.  418,  42  L.  ed.  819;  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154 
U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed.  1014;  Reagan  v.  Mercantile  T.  Co. 
(1894)  154  U.  S.  413,  418,  14  Sup.  Ct.  1060,  1062,  38  L.  ed.  1028;  Chicago, 
M.  &  St.  P.  Ry.  Co.  V.  Minnesota  (1890)  134  U.  S.  418,  10  Sup.  Ct.  462, 
702,  33  L.  ed.  970;  Montana,  W.  &  S.  R.  Co.  v.  Morley  (1912)  198  Fed. 
991.  See  also  Railroad  Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.  (1909) 
212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed.  577.  Compare  Louisville  &  N.  R. 
Co.  V.  Kentucky  (1902)  183  U.  S.  503,  22  Sup.  Ct.  95,  46  L.  ed.  298;  Minne- 
apolis &  St.  L.  R.  Co.  V.  Minnesota  ( 1903 )  186  U.  S.  257,  22  Sup.  Ct.  900, 
46  L.  ed.  1151;  and  also  Norfolk  &  S.  T.  Co.  v.  Virginia  (1912)  225  U.  S. 
264,  32  Sup.  Ct.  828,  56  L.  ed.  1082,  the  last  of  which  arose  under  the  due 
process  clause  of  the  Fourteenth  Amendment. 


GENERAL  EXTENT  OF  RESTRAINT.  257 

tion  which  discriminates  unjustifiably  against  particular 
persons  or  classes  of  persons,  it  does  not  limit  the  state  to 
governmental  action  which  affects  alike  all  persons  who 
are  subject  to  its  jurisdiction.^*'  It  does  not  prohibit  leg- 
islation which  is  limited  either  in  the  objects  to  which  it 
is  directed  or  by  the  territory  within  which  it  is  to  op- 
erate/"^ if  within  the  sphere  of  its  operation  the  legisla- 

16  It  does  "not  radically  change  the  whole  theory  of  the  relation  of  the 
state  and  federal  governments  to  each  other,  and  of  both  governments  to 
the  people:"  see  note  51,  in  Chapter  4,  supra.  On  the  power  to  enact  special 
legislation  see  Magouu  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283,  294, 
18  Sup.  Ct.  594,  599,  42  L.  ed.  1037;  Central  L.  Co.  v.  South  Dakota  (1912) 
226  U.  S.  157,  161,  33  Sup.  Ct.  66,  67,  57  L.  ed.  164. 

iTMagoun  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283,  293,  294,  18 
Sup.  Ct.  594,  598,  599,  42  L.  ed.  1037.  See  also  Patterson,  The  United 
States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  314.  The  Amend- 
ment does  not  compel  the  legislature  "to  run  all  its  laws  in  the  channels 
of  general  legislation:"  Bachtel  v.  Wilson  (1907)  204  U.  S.  36,  41,  27 
Sup.  Ct.  243,  245,  51  L.  ed.  357.  "When  there  is  a  difference  it  need  not 
be  great  or  conspicuous  in  order  to  warrant  classification : "  Keeney  v. 
New  York  (1912)  222  U.  S.  525,  537,  32  Sup.  Ct.  105,  107,  55  L.  ed.  299. 
"If  an  evil  is  specially  experienced  in  a  particular  branch  of  business,  the 
Constitution  embodies  no  prohibition  of  laws  confined  to  the  evil,  or  doc- 
trinaire requirement  that  they  should  be  couched  in  all-embracing  terms. 
It  does  not  forbid  the  cautious  advance,  step  by  st«p,  and  the  distrust  of 
generalities  which  sometimes  have  been  the  weakness,  but  often  the 
strength,  of  English  legislation:"  Carroll  v.  Greenwich  Ins.  Co.  (1905) 
199  U.  S.  401,  411,  26  Sup.  Ct.  66,  67,  50  L.  ed.  246;  see  also  Lindsley  v. 
Natural  C.  G.  Co.  (1911)  220  U.  S.  61,  81,  31  Sup.  Ct.  337,  341,  55  L.  ed. 
369.  "We  must  be  cautious  about  pressing  the  broad  words  of  the  Four- 
teenth Amendment  to  a  drily  logical  extreme.  Many  laws  which  it  would 
be  vain  to  ask  the  court  to  overthrow  could  be  shown,  easily  enough,  to 
transgress  a  scholastic  interpretation  of  one  or  another  of  the  great  guar- 
antees in  the  Bill  of  Rights:"  Noble  State  Bank  v.  Haskell  (1911)  219  U. 
S.  104,  110,  31  Sup.  Ct.  186,  187,  55  L.  ed.  112.  "You  cannot  carry  a  con- 
stitution out  with  mathematical  nicety  to  logical  extremes:"  Paddell  v. 
City  of  New  York  (1908)  211  U.  S.  446,  450,  29  Sup.  Ct.  139,  140,  53  L. 
ed.  275.  "Tradition  and  the  habits  of  the  community  count  for  more  than 
logic:"  Laurel  Hill  Cemetery  v.  San  Francisco  (1910)  216  U.  S.  358,  366, 
30  Sup.  Ct.  301,  302,  54  L.  ed.  515.  "The  general  expressions  of  the  Amend- 
ment must  not  be  allowed  to  upset  familiar  and  long-established  methods 
and  processes  by  a  formal  elaboration  of  rules  which  its  words  do  not  im- 
port:"   Hatch  v.  Reardon  (1907)   204  U.  S.  152,  158,  27  Sup.  Ct.  188,  189, 

17 


258  THE  EQUAL  PROTECTION  PROVISION. 

tion  affects  alike  all  persons  and  property  similarly  situ- 
ated.^^  The  Amendment  does  not  forbid  the  state  legis- 
latures to  classify  the  objects  of  legislation. 

Wide  range  of  legislative  discretion. 

140.  And  in  making  classilfications  a  wide  scope  of  leg- 
islative discretion  may  be  exerted.^^  The  provision  does 
not  restrain  the  normal  exercise  of  governmental  power, 
and,  therefore,  even  if  some  inequality  results  a  law  is 
not  for  that  reason  unconstitutional.^"  If  the  classifica- 
tion rests  upon  some  reasonable  consideration  of  differ- 
ence or  policy  there  is  no  denial  of  the  equal  protection  of 

51  L.  ed.  415;  see  also  Louisville  &  N.  R.  Co.  v.  Barber  A.  P.  Co.  (1905) 
197  U.  S.  430,  434,  25  Sup.  Ct.  466,  467,  49  L.  ed.  819;  Southern  I.  Ry.  Co.  v. 
Railroad  Comn.  (1909)  172  Ind.  113,  127,  87  N.  E.  966,  971.  And  see  note 
24,  infra;  Sperry  &  Hutchinson  Co.  v.  Rhodes  (1911)  220  U.  S.  502,  505, 
31  Sup.  Ct.  490,  491,  55  L.  ed.  561;  Denver  v.  New  Y.  T.  Co.  (1913)  229  U. 
S.  123,  143,  33  Sup.  Ct.  657,  666,  57  L.  ed.  1101;  Citizens'  T.  Co.  v.  Fuller 
(1913)  229  U.  S.  322,  33  Sup.  Ct.  833,  57  L.  ed.  1206;  Chicago  D.  &  C. 
Co.  V.  Fraley  (1913)  228  U.  S.  680,  686,  33  Sup.  Ct.  715,  716,  57  L.  ed. 
1022;  Schmidinger  v.  Chicago  (1913)  226  U.  S.  578,  586,  33  Sup.  Ct.  182, 
183,  57  L.  ed.  364;  Rosenthal  v.  New  York  (1912)  226  U.  S.  261,  271,  33 
Sup.  Ct.  27,  30,  57  L.  ed.  212;  Kentucky  U.  Co.  v.  Kentucky  (1911)  219 
U.  S.  140,  161,  31  Sup.  Ct.  171,  180,  55  L.  ed.  137;  Ozan  L.  Co.  v.  Union  C. 
N.  Bk,  (1907)  207  U.  S.  251,  256,  28  Sup.  Ct.  89,  91,  52  L.  ed.  195;  State 
V.  Sutton   (1912)   84  N.  J.  L.,  84  Atl.  1057,  1059. 

18  German  A.  Ins.  Co.  v.  Hale  (1911)  219  U.  S.  307,  310,  31  Sup.  Ct. 
246,  249,  55  L.  ed.  229;  Williams  v.  Arkansas  (1910)  217  U.  S.  79,  90,  30 
Sup.  Ct.  493,  495,  54  L.  ed.  673;  Barbier  v.  Connolly  (1885)  113  U.  S.  27, 
32,  5  Sup.  Ct.  357,  360,  28  L.  ed.  923. 

19 Louisville  &  N.  R.  Co.  v.  Melton  (1910)  218  U.  S.  36,  52,  30  Sup.  Ct. 
676,  680,  54  L.  ed.  921;  Central  L.  Co.  v.  South  Dakota  (1912)  226  U.  S. 
157,  160,  33  Sup.  Ct.  66,  67,  57  L.  ed.  164;  Brown-Forman  Co.  v.  Ken- 
tucky (1910)  217  U.  S.  563,  573,  30  Sup.  Ct.  578,  580,  54  L.  ed.  883; 
Magoun  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283,  293,  294,  18  Sup.  Ct. 
594,  598,  599,  42  L.  ed.  1037;  and  see  citations  in  remainder  of  this  section. 

20  Louisville  &  N.  R.  Co.  v.  Melton  (1910)  218  U.  S.  36,  52,  30  Sup.  Ct. 
676,  680,  54  L.  ed.  921.  "The  very  idea  of  classification  is  that  of  inequal- 
ity, so  that  it  goes  without  saying  that  the  fact  of  inequality  in  no  manner 
determines  the  matter  of  constitutionality:"  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Matthews  (1899)   174  U.  S.  96,  106,  19  Sup.  Ct.  609,  613,  43  L.  ed.  909. 


GENERAL  EXTENT  OF  RESTRAINT.  259 

the  laws.^^  Moreover,  a  classification  need  not  be  scien- 
tific nor  logically  appropriate.  If  it  is  not  palpably  arbi- 
trary, but  is  uniform  within  the  class,  it  is  constitution- 
al.22 

21  Brown-Forman  Co.  v.  Kentucky  (1910)  217  U.  S.  563,  573,  30  Sup. 
Ct.  578,  580,  54  L.  ed.  883;  Rosenthal  v.  New  York  (1912)  226  U.  S.  260, 
270,  33  Sup.  Ct.  27,  30,  57  L.  ed.  212.  "The  question  in  each  case  is 
whether  the  legislature  has  adopted  the  statute  in  exercise  of  a  reasonable 
discretion,  or  whether  its  action  be  a  mere  excuse  for  an  unjust  discrimina- 
tion, or  the  oppression  or  spoliation  of  a  particular  class:"  Holden  v. 
Hardy  (1898)  169  U.  S.  366,  398,  18  Sup.  Ct.  383,  390,  42  L.  ed.  780.— "A 
state  does  not  deny  the  equal  protection  of  the  laws  merely  by  adjusting 
its  revenue  laws  and  taxing  system  in  such  a  way  as  to  favor  certain  indus- 
tries or  forms  of  industry.  Like  the  United  States,  although  with  more 
restriction  and  in  less  degree,  a  state  may  carry  out  a  policy,  even  a  policy 
with  which  we  might  disagree.  It  may  make  discriminations,  if  founded 
on  distinctions  which  we  cannot  pronounce  unreasonable  and  purely  arbi- 
trary:" Quong  Wing  v.  Kirkendall  (1912)  223  U.  S.  59,  62,  32  Sup.  Ct. 
192,  193,  56  L.  ed.  350.  And  see  cases  there  cited;  Central  L.  Co.  v.  South 
Dakota  (1912)  226  U.  S.  157,  160,  33  Sup.  Ct.  66,  67,  57  L.  ed.  164;  Grif- 
fith v.  Connecticut  (1910)  218  U.  S.  563,  31  Sup.  Ct.  132,  54  L.  ed.  883; 
Michigan  C.  R.  Co.  v.  Powers  (1906)  201  U.  S.  245,  293,  26  Sup.  Ct.  459, 
462,  50  L.  ed.  744;  Barbier  v.  Connolly  (1885)  113  U.  S.  27,  31,  32,  5  Sup. 
Ct.  357,  359,  360,  28  L.  ed.  923 ;  and  cases  in  notes  34-39,  infra. 

22  Mutual  L.  Co.  V.  Martell  (1911)  222  U.  S.  225,  235,  32  Sup.  Ct.  74,  75, 
56  L.  ed.  175.  "Classification  must  have  relation  to  the  purpose  of  the  leg- 
islature. But  logical  appropriateness  of  the  inclusion  or  exclusion  of  ob- 
jects or  persons  is  not  required.  .  .  .  Exact  wisdom  and  nice  adapta- 
tion are  not  required  by  the  Fourteenth  Amendment,  nor  the  crudeness  nor 
the  impolicy  nor  even  the  injustice  of  state  laws  redressed  by  it:"  Heath 
&  Milligan  Mfg.  Co.  v.  Worst  (1907)  207  U.  S.  338,  354,  28  Sup.  Ct.  114, 
119,  52  L.  ed.  236.  "The  selection,  in  order  to  become  obnoxious  to  the 
Fourteenth  Amendment,  must  be  arbitrary  and  unreasonable;  not  merely 
possibly,  but  clearly  and  actually  so:"  Bachtel  v.  Wilson  (1907)  204  U. 
S.  36,  41,  27  Sup.  Ct.  243,  245,  51  L.  ed.  357.  "Classification  ...  is 
not  invalid  because  not  depending  on  scientific  or  marked  differences  in 
things  or  persons  in  their  relations.  It  suffices  if  it  is  practical,  and  is  not 
reviewable  unless  palpably  arbitrary:"  Orient  Ins.  Co.  v.  Daggs  (1899) 
172  U.  S.  557,  562,  19  Sup.  Ct.  281,  282,  43  L.  ed.  552.  "Great  constitu- 
tional provisions  must  be  administered  with  caution.  Some  play  must  be 
allowed  for  the  joints  of  the  machine,  and  it  must  be  remembered  that  leg- 
islatures are  ultimate  guardians  of  the  liberties  and  welfare  of  the  people 
in  quite  as  great  a  degree  as  the  courts:"  Missouri,  K.  &  T.  Rj'.  C<^.  v. 
May   (1904)   194  U.  S.  267,  270,  24  Sup.  Ct.  638,  639,  48  L.  ed.  971.    There 


260  THE  EQUAJL  PROTECTION  PROVISION. 

While  the  court  may,  within  the  limits  pointed  out,  in- 
quire whether  the  classification  is  based  on  justifiable 
distinctions,  considering  the  purpose  of  the  law  and  the 
means  to  be  observed  to  effect  that  purpose,^  ^  the  legisla- 
ture is  the  only  judge  of  the  policy  of  a  proposed  discrim- 
ination. When  it  has  decided  upon  a  measure,  its  action 
cannot  be  disturbed  by  the  courts  under  the  Fourteenth 
Amendment  unless  they  can  see  clearly  that  there  is  no 
fair  reason  for  the  law  that  would  not  require  with  equal 
force  its  extension  to  others  whom  it  leaves  untouched.-^ 

is  "no  precise  application  of  the  rule  of  reasonableness  of  classification,  and 
the  rule  of  equality  permits  many  practical  inequalities.  And  necessarily 
so.  In  a  classification  for  governmental  purposes  there  cannot  be  an  exact 
exclusion  or  inclusion  of  persons  and  things:"  Magoun  v.  Illinois  T.  &  S. 
Bank  (1898)  170  U.  S.  283,  296,  18  Sup.  Ct.  594,  599,  42  L.  ed.  1037.  The 
provision  "at  the  most  can  only  be  held  to  restrain  such  an  exercise  of 
power  as  would  exclude  the  conception  of  judgment  and  discretion,  and 
which  would  be  so  obviouslj^  arbitrary  and  unreasonable  as  to  be  beyond 
the  pale  of  governmental  authority:"  Campbell  v.  California  (1906)  200 
U.  S.  87,  95,  26  Sup.  Ct.  182,  185,  50  L.  ed.  382.  "The  problems  of  govern- 
ment are  practical  ones  and  may  justify,  if  they  do  not  require,  rough 
accommodations — illogical,  it  may  be,  and  unscientific.  But  even  such 
criticism  should  not  be  hastily  expressed.  What  is  best  is  not  always  dis- 
cernible; the  wisdom  of  any  choice  may  be  disputed  or  condemned.  Mere 
errors  of  judgment  are  not  subject  to  our  judicial  review:"  Metropolis 
T.  Co.  V.  Chicago  (1913)  228  U.  S.  61,  69,  70,  33  Sup.  Ct.  441,  443,  57  L. 
ed.  730.  See  also  Keeney  v.  New  York  (1912)  222  U.  S.  525,  537,  32  Sup. 
Ct.  105,  107,  56  L.  ed.  299;  Louisville  &  N.  R.  Co.  v.  Melton  (1910)  218 
U.  S.  36,  55,  30  Sup.  Ct.  676,  681,  54  L.  ed.  921;  and  note  17,  supra. 

23  See  St.  John  v.  New  York  (1906)  201  U.  S.  633,  636,  26  Sup.  Ct.  554, 
555,  50  L.  ed.  896;  Southern  Ry.  Co.  v.  Greene  (1910)  216  U.  S.  400,  417, 
30  Sup.  Ct.  287,  291,  54  L.  ed.  536;  Holden  v.  Hardy  (1898)  169  U.  S.  366, 
398,  18  Sup.  Ct.  383,  390,  42  L.  ed.  780;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis 
(1897)  165  U.  S.  150,  155,  159,  165,  17  Sup.  Ct.  255,  257,  258,  261,  41  L. 
ed.  666. 

24  Williams  v.  Arkansas  (1910)  217  U.  S.  79,  90,  30  Sup.  Ct.  493,  495, 
54  L.  ed.  673;  Barrett  v.  Indiana  (1913)  229  U.  S.  26,  30,  33  Sup.  Ct.  692, 
693,  57  L.  ed.  1050;  Citizens'  T.  Co.  v.  Fuller  (1913)  229  U.  S.  322,  33  Sup. 
Ct.  833,  57  L.  ed.  1206;  Chicago  D.  &  C.  Co.  v.  Fraley  (1913)  228  U.  S.  680, 
086,  33  Sup.  Ct.  715,  716,  57  L.  ed.  1022;  Mutual  L.  Co.  v.  Martell  (1911) 
222  U.  S.  225,  235,  236,  32  Sup.  Ct.  74,  75,  56  L.  ed.  175;  Lindsley  v.  Na- 
tural C.  G.  Co.    (1911)    220  U.  S.  61,  78,  31  Sup.  Ct.  337,  340,  55  L.  ed. 


BEAKING  ON  RATE   REGULATION.  261 

BEARING  OF  PROVISION  ON  RATE  REGULATION. 

In  general. 

141.  We  shall  not  attempt  to  consider  in  detail  the  de- 
cisions of  the  court  under  the  equal  protection  provision.^^ 
It  is  sufficient  to  note  merely  those  which  have  the  most 
direct  bearing  upon  rate  regulation. 

We  have  already  seen  that  a  state  may  not  require  rail- 
road companies  to  transport  passengers  or  freight  at  rates 
which  are  unreasonably  low.^^  This  statement  is  indefi- 
nite, for  it  does  not  show  precisely  what  are  the  limits  to 
rate  regulation,  but  it  must  suffice  for  the  present.  In  a 
subsequent  chapter  ^"^  we  shall  consider  at  length  the  rules 
which  are  observed  by  the  court  in  determining  whether 
or  not  rates  are  so  low  as  to  be  unconstitutional. 

Power  to  limit  rates. 

142.  The  provision,  it  has  been  held,  does  not  forbid  the 
states  to  place  limitations  upon  the  charges  for  railroad 
transportation ;  ^^  the  state  may  limit  the  rates  of  water 

369;  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  280,  281,  29 
Sup.  Ct.  50,  55,  53  L.  ed.  176;  Missouri,  K.  &  T.  Ry.  Co.  v.  May  (1904)  194 
U.  S.  267,  269,  24  Sup.  Ct.  638,  639,  48  L.  ed.  971;  Finley  v.  California 
(1911)  222  U.  S.  28,  32  Sup.  Ct.  13,  56  L.  ed.  75;  see  also  Bradley  v.  Rich- 
mond (1913)  227  U.  S.  477,  33  Sup.  Ct.  318,  57  L.  ed.  603;  Metropolis  T. 
Co.  V.  Chicago  (1913)  228  U.  S.  61,  70,  33  Sup.  Ct.  441,  443,  57  L.  ed.  730; 
and  language  of  Holmes,  J.,  in  Interstate  C.  S.  Ry.  Co.  v.  Commonwealth 
(1907)  207  U.  S.  79,  85,  28  Sup.  Ct.  26,  27,  52  L.  ed.  111.  Compare  Louis- 
ville &  N.  R.  Co.  V.  Railroad  Comn.   (1912)    196  Fed.  800,  818. 

25  Many  decisions  are  cited  in  Patterson,  The  United  States  and  the 
States  Under  the  Constitution,  2d  ed.,  sec.  131. 

26  See  note  15,  supra. 

27  Chapter  6,  infra. 

28  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649,  15  Sup.  Ct. 
484,  39  L.  ed.  567;  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362, 
14  Sup.  Ct.  1047,  38  L.  ed.  1014;  Smyth  v.  Ames  (1898)  171  U.  S.  361,  18 
Sup.  Ct.  888,  43  L.  ed.  197;  Atlantic  C.  L.  R.  Co.  v.  Florida  (1906)  203  U. 
S.  256,  27  Sup.  Ct.  108,  51  L.  ed.  174;  Minneapolis  &  St.  L.  R.  Co.  v.  Min- 


262         THE  EQUAL  PROTECTION  PROVISION. 

supply  compardes,^^  gas  companies  ^'^  and  telephone  com- 
panies,^^ and  it  may  fix  the  tolls  which  may  be  charged  by 
turnpike  companies,^^  and  the  rates  which  may  be  charg- 
ed by  grain  elevator  compauies.^^ 

Classification  of  railroads  for  rate  regulation. 

143.  Moreover,  a  state  may  classify  its  railroads  for  the 
purpose  of  rate  regulation.  Thus  it  may  place  limitations 
upon  roads  over  a  stated  length  which  do  not  apply  to 
roads  under  that  length  ;-^^  it  may  place  limitations  upon 
roads  in  one  part  of  the  state  which  do  not  apply  to  roads 

nesota  (1902)  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151.  See  also  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  V.  Tompkins  (1900)  176  U.  S.  167,  20  Sup.  Ct. 
336,  44  L.  ed.  417;  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S. 
503,  22  Sup.  Ct.  95,  46  L.  ed.  298. 

.  29  Stanislaus  County  v.  San  Joaquin  &  K.  R.  C.  &  I.  Co.  (1904)  192  U. 
S.  201,  24  Sup.  Ct.  241,  48  L.  ed.  406. 

30  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1912)  223  U.  S.  655,  32  Sup.  Ct. 
389,  56  L.  ed.  594;  Willcox  v.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  29 
Sup.  Ct.  192,  53  L.  ed.  382. 

31  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  29  Sup.  Ct.  50, 
53  L.  ed.  176. 

32  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578,  17  Sup.  Ct 
198,  41  L.  ed.  560. 

33Munn  V.  Illinois  (1876)  94  U.  S.  113,  24  L.  ed.  77;  Budd  v.  New 
York  (1892)  143  U.  S.  517,  12  Sup.  Ct.  468,  36  L.  ed.  247;  Brass  v.  North 
Dakota  (1894)   153  U.  S.  391,  14  Sup.  Ct.  857,  38  L.  ed.  757. 

34  Dow  V.  Beidelman  (1888)  125  U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  ed. 
841;  Chesapeake  &  O.  Ry.  Co.  v.  Conley  (1913)  230  U.  S.  513,  33  Sup.  Ct. 
985,  57  L.  ed.  1597.  See  also  Consumers'  League  v.  Colorado  &  S.  Ry.  Co. 
(1912)  53  Colo.  54,  125  Pac.  577;  Southern  Ry.  Co.  v.  Hunt  (1908)  42  Ind. 
App.  90,  102  et  seq.,  83  N.  E.  721,  726,  727.  In  New  Y.,  N.  H.  &  H.  R.  Co. 
V.  New  York  (1897)  165  U.  S.  628,  17  Sup.  Ct.  418,  41  L.  ed.  853,  it  was 
held  that  a  state  may  regulate  the  heating  of  steam  passenger  cars,  al- 
though at  the  same  time  it  declares  that  the  regulations  shall  not  apply  to 
railroads  less  than  fifty  miles  in  length ;  and  in  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Arkansas  (1911)  219  U.  S.  453,  31  Sup.  Ct.  275,  55  L.  ed.  290,  the  court 
sustained  a  full  crew  law  which  did  not  apply  to  railroads  less  than  fifty 
miles  in  length.  Compare  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  of  Ala- 
bama  (1912)    196  Fed.  800,  817. 


BEAHING  ON  RATE  REGULATION.  263 

in  another  portion  ;^^  and  it  may  classify  its  railroads  ac- 
cording to  the  amount  ^"^  or  character  ^"^  of  business  trans- 
acted.^^ And  the  state  may  even  make  rate  regulations 
which  apply  only  to  particular  roads.-"^^ 

35  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578,  17  Sup. 
Ct.  198,  41  L.  ed.  560.  See  also  Budd  v.  New  York  (1892)  143  U.  S.  517, 
12  Sup.  Ct.  468,  36  L.  ed.  247:  Railroad  Co.  v.  Richmond  (1877)  96  U.  S. 
521,  24  L.  ed.  734;  Gardner  v.  Michigan  (1905)  199  U.  S.  325,  26  Sup.  Ct. 
106,  50  L.  ed.  212;  Missouri  v.  Lewis  (1879)  101  U.  S.  22,  25  L.  ed.  989. 
Compare  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  of  Alabama  (1912)  196 
Fed.  800,  817. 

36  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa  (1876)  94  U.  S.  155,  163,  164,  24  L. 
ed.  94  (affirming  Chicago,  B.  &  Q.  R,  Co.  v.  Attorney-General  (1875)  Fed. 
Cas.  No.  2666)  ;  Wellman  v.  Chicago  &  G.  T.  Ry.  Co.  (1890)  83  Mich.  592, 
47  N.  W.  489;  Citizens'  T.  Co.  v.  Fuller  (1913)  229  U.  S.  322,  33  Sup.  Ct. 
833,  57  L.  ed.  1206.  See  also  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va. 
129,  67  S.  E.  613. 

37  Consumers'  League  v.  Colorado  &  S.  Ry.  Co.  (1912)  53  Colo.  54,  125 
Pac.  577;  Southern  Ry.  Co.  v.  Hunt  (1908)  42  Ind.  App.  90,  102-105,  83 
N.  E.  721,  726,  727.  See  also  Chesapeake  &  0.  Ry.  Co.  v.  Conley  (1913) 
230  U.  S.  513,  33  Sup.  Ct.  985,  57  L.  ed.  1597;  Engel  v.  O'Malley  (1911) 
219  U.  S.  128,  138,  31  Sup.  Ct.  190,  193,  55  L.  ed.  128;  People  v.  New  Y. 
S.  B.  of  T.  Comrs.  (1905)  199  U.  S.  1,  47,  25  Sup.  Ct.  705,  713,  50  L.  ed. 
65;  Savannah,  T.  &  I.  of  H.  Ry.  v.  Savannah  (1905)  198  U.  S.  392,  25  Sup. 
Ct.  690,  49  L.  ed.  1097;  Metropolis  T.  Co.  v.  Chicago  (1913)  228  U.  S.  61, 
33  Sup.  Ct.  441,  57  L.  ed.  730. 

38  Compare  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  of  Alabama  (1912) 
196  Fed.  800,  817. 

39 Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  280,  29  Sup. 
Ct.  50,  55,  53  L.  ed.  176;  Southern  I.  Ry.  Co.  v.  Railroad  Comn.  (1909)  172 
Ind.  113,  127,  87  N.  E.  966,  971;  Houston  &  T.  C.  R.  Co.  v.  Storey  (1906) 
149  Fed.  499,  504.  See  also  Ames  v.  Union  P.  Ry.  Co.  (1894)  64  Fed.  165. 
Compare  Houston  &  T.  C.  R.  Co.  v.  Storey,  supra,  and  also  Cotting  v.  Kan- 
sas C.  S.  Y.  Co.  (1901)  183  U.  S.  79,  102,  22  Sup.  Ct.  30,  40,  46  L.  ed.  92, 
in  the  latter  of  which  the  court  declared  unconstitutional  a  statute  which, 
although  general  in  its  terms,  was  designed  to  limit  the  charges  of  a  single 
stock  yards  company  and  which  did  not  limit  the  charges  which  might  be 
made  by  similar  companies  doing  less  business.  It  is  questionable,  however, 
whether  the  business  of  the  stock  yards  company  was  so  far  analogous  to 
that  of  a  railroad  company  that  the  decision  would  be  applicable  to  cases 
of  railroad  transportation. 


264  THE  EQUAL  PROTECTION  PROVISION. 

Other  regulation  of  railroads. 

144.  So  also  a  state  may  forbid  its  railroads  to  charge 
more  for  a  shorter  than  for  a  longer  haul  including  the 
same  route  except  by  permission  of  the  railroad  commis- 
sion.^^ 

And  a  state  may  require  the  railroad  companies  to  meet 
the  expenses  of  the  state  railroad  commission,^^  and  the 
electric  companies  to  meet  the  salaries  of  the  subway 
commissioners.'*^  Neither  requirement,  it  has  been  held, 
violates  the  equal  protection  provision. 

EXCESSIVE  PENALTIES. 

145.  The  court  has,  however,  declared  unconstitutional 
a  statute  which  imposed  upon  railroads  and  railroad  em- 
ployees who  should  exact  higher  rates  than  were  ordained 
by  the  state  penalties  which  would  be  so  large  in  the  ag- 
gregate that  the  railroads  and  their  employees  would 
comply  with  the  statutes  and  orders  relating  to  rates 
rather  than  contest  the  validity  of  the  rates  in  actions  at 
law.*3 

40  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503,  22  Sup.  Ct. 
95,  46  L.  ed.  298.  See  also  Alabama  &  V.  Ry.  Co.  v.  Mississippi  R.  Comn. 
(1906)  203  U.  S.  496,  27  Sup.  Ct.  163,  51  L.  ed.  289,  which  arose  under  the 
due  process  provision  of  the  Fourteenth  Amendment. 

41  Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes  (1892)  142  U.  S.  386,  12  Sup.  Ct. 
255,  35  L.  ed.  1051.  See  also  St.  Mary's  F.-A.  P.  Co.  v.  West  Virginia 
(1906)  203  U.  S.  183,  27  Sup.  Ct.  132,  51  L.  ed.  144. 

42  New  York  v.  Squires  (1892)  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  ed. 
666. 

43  Ex  parte  Young  (1908)  209  U.  S.  123,  28  Sup.  Ct.  441,  52  L.  ed.  714, 
13  L.  R.  A.  N.  S.  932.  See  also  Missouri  P.  Ry.  Co.  v.  Tucker  ( 1913)  230  U.  S. 
340,  33  Sup.  Ct.  961,  57  L.  ed.  1507;  Southern  P.  Co.  v.  Campbell  (1913)  230 
U.  S.  537,  33  Sup.  Ct.  1027,  57  L.  ed.  1610;  Willcox  v.  Consolidated  G.  Co. 
(1909)  212  U.  S.  19,  53,  54,  29  Sup.  Ct.  192,  200,  53  L.  ed.  382;  Portland 
Ry.,  L.  &  P.  Co.  V.  Portland  (1912)  201  Fed.  119;  Ex  parte  Wood  (1907) 
155  Fed.  190  (affirmed  in  Hunter  v.  Wood  (1908)  209  U.  S.  205,  28  Sup. 
Ct.  472,  52  L.  ed.  747)  ;  Consolidated  G.  Co.  v.  Mayer   (1906)    146  Fed.  150. 


EXCESSIVE  PENALTIES.  265 

The  court  was  not  satisfied  to  take  the  position  that  if 
the  rates  imposed  were  so  low  that  for  that  reason  they 
would  be  unconstitutional  their  enforcement  might  under 
the  circumstances  be  restrained  by  an  action  in  equity  in 
a  federal  court.  It  went  further  and  said  that  the  fact 
that  such  large  penalties  were  imposed  of  itself  was  suf- 
ficient to  render  the  act  unconstitutional  as  denying  to  the 
railroads  and  the  railroad  employees  the  equal  protection 
of  the  laws. 

The  reasons  advanced  in  support  of  the  decision  are  in 
part  at  least  very  unsatisfactory.^^  It  seems,  however, 
that  the  decision  may  be  properly  based  upon  the  pro- 
vision for  the  equal  protection  of  the  laws. 

Compare  Waters-Pierce  Oil  Co.  v.  Texas  (1909)  212  U.  S.  86,  111,  29  Sup. 
Ct.  220,  227,  53  L.  ed.  417;  Weems  v.  United  States  (1910)  217  U.  S.  349, 
30  Sup.  Ct.  544,  54  L.  ed.  793;  Boise  A.  H.  &  C.  W.  Co.  v.  Boise  City  ( 1909) 
213  U.  S.  276,  29  Sup.  Ct.  426,  53  L.  ed.  796;  Excessive  Penalties  Affecting 
the  Validity  of  Maximum  Rate  Legislation,  70  Cent.  L.  J.  381;  O'Neil  v. 
Vermont  (1892)  144  U.  S.  323,  12  Sup.  Ct.  693,  36  L.  ed.  450.  In  the  case 
last  cited  heavy  penalties  were  imposed:  the  equal  protection  provision, 
however,  was  not  invoked.     See  also  note  46,  infra. 

44  The  court  takes  the  position  that  until  it  has  passed  upon  a  law  or 
order  limiting  rates  the  essential  steps  in  its  enactment  have  not  been  fully 
complied  with.  Thus  the  opinion  does  not  show  a  clear  realization  of  the 
fact  that  rate  regulation  is  not  judicial  in  its  nature:  see  discussion  in 
sections  32-34,  51,  60,  supra.  And  the  court  quotes  with  approval  the  fol- 
lowing peculiar  language  in  Cotting  v.  Kansas  C.  S.  Y.  Co.  (1901)  183  U. 
S.  79,  102,  22  Sup.  Ct.  30,  39,  40,  46  L.  ed.  92,  "It  is  doubtless  true  that 
the  state  may  impose  penalties,  such  as  will  tend  to  compel  obedience  to 
its  mandates  by  all,  individuals  or  corporations,  and  if  extreme  and  cumu- 
lative penalties  are  imposed  only  after  there  has  been  a  final  determina- 
tion of  the  validity  of  the  statute,  the  question  would  be  very  different  from 
that  here  presented." — Compare  Roe,  Our  Judicial  Oligarchy,  63-68; 
Southern  Ry.  Co.  v.  Hunt  (1908)  42  Ind.  App.  90,  99,  83  N.  E.  721,  725; 
Smalley,  Railroad  Rate  Control  (Publications  of  the  American  Econ. 
Assn.)  114-117;  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  16,  29 
Sup.  Ct.  148,  153,  53  L.  ed.  371;  Louisville  &  N.  R.  Co.  v.  Railroad  Comn. 
(1912)  196  Fed.  800  (where  the  case  was  pending  five  years)  ;  Collins,  The 
Fourteenth  Amendment  and  the  States,  132,  136,  154,  158;  Hadley,  The 
Eleventh  Amendment,  66  Cent.  L.  J.  71,  76;  Ransom,  Majority  Rule  and 
the  Judiciary,  62;  note  35  in  Chapter  6,  infra. 


266         THE  EQUAL  PROTECTION  PROVISION. 

And  the  court  might  have  passed  over  any  discussion 
of  the  Fourteenth  Amendment  and  said  broadly  that 
where  the  constitutionality  of  a  statute  is  involved— in 
this  case,  e.  g.,  upon  the  ground  that  the  rates  imposed 
were  so  low  as  to  be  unconstitutional  for  that  reason— 
there  is  a  right  to  resort  to  a  federal  court  which  does  not 
rest  upon  state  legislation  and  which  a  state  cannot  take 
away,  and  for  the  exercise  of  which  a  state  cannot  penal- 
ize a  litigant.*^  Or  the  court  might  have  so  construed  the 
statute  that  the  penal  clause  became  wholly  inapplicable 
to  a  railroad  company  upon  the  institution  by  it,  in  good 
faith,  of  a  suit  to  test  the  validity  of  the  act,  or  have  held 
that  if  the  penal  clause  were  void  for  obstruction  of 
remedy  it  was  not  void  to  all  intents  and  purposes,  but 
only  in  so  far  as  it  so  operated.**^ 

REASONABLENESS  AND  JUST  COMPENSATION. 

146.  We  have  already  examined  the  proposition  that 
the  due  process  clause  of  the  Fourteenth  Amendment  pro- 
hibits the  enactment  of  substantive  legislation  which  is 
clearly  unreasonable*'^  and  the  proposition  that  that  clause 
prohibits  the  taking  of  private  property  for  public  use 

«See  Herndon  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  135,  158, 
30  Sup.  Ct.  633,  639,  54  L.  ed.  970;  and  also  Seaboard  A.  L.  Ry.  Co.  a. 
Railroad  Comn.  (1907)  155  Fed.  792;  Singewald,  The  Doctrine  of  Non- 
suability  of  the  State  in  the  United  States,  28  Johns  Hopkins  University 
Studies,  93.  Consider  discussion  in  sec.  22,  supra,  on  the  proper  limits  of 
this  proposition.  But  compare  Singewald,  op.  cit.,  101,  where  the  position 
is  taken  that  federal  statutes  forbid  federal  courts  to  take  such  action  as 
was  taken  in  Ex  parte  Young. 

46  See  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129,  157,  67  S.  E. 
613,  625,  where  the  court  takes  this  position  and  supports  it  with  discus- 
sion; and  also  Chesapeake  &  O.  Ry.  Co.  v.  Conley  (1913)  230  U.  S.  513,  33 
Sup.  Ct.  985,  57  L.  ed.  1597;  Excessive  Penalties  Affecting  the  Validity  of 
Maximum  Rate  Legislation,  70  Cent.  L.  J.  381. 

47  See  sees.  105-118,  supra. 


REASONABLENESS  AND  JUST  COMPENSATION.  267 

without  just  compensation,^^  and  we  have  seen  that  no 
sufficient  reason  has  been  advanced  in  support  of  either 
proposition. 

It  seems,  however,  that  the  court  might  with  far  more 
propriety  declare  that  the  equal  protection  provision  au- 
thorizes the  court  to  inquire  whether  substantive  state 
legislation  which  is  not  universal  in  its  scope  is  clearly 
unreasonable,^^  and  that  that  provision  requires  the  pay- 
ment of  just  compensation  when  private  property  is  taken 
for  public  use.  It  is  not  justifiable  for  the  court,  without 
advancing  strong  reasons  for  its  position,  to  say  that  the 
due  process  provision  of  the  Fourteenth  Amendment  in- 
cludes a  requirement  of  just  compensation,  in  view  of  the 
fact  that  the  Fifth  Amendment  provides  for  due  process 
and  just  compensation  separately.^*^  But  there  is  no  such 
objection  to  reaching  the  conclusion,  through  lines  of  rea- 
soning which  are  not  difficult,  that  the  equal  protection 
provision  is  more  comprehensive  than  the  earlier  provi- 
sion for  just  compensation,  that  it  includes  a  require- 
ment of  just  compensation,  and  that  therefore  it  was  not 
necessary  to  express  the  just  compensation  requirement 
in  a  separate  provision  as  was  done  in  the  Fifth  Amend- 
ment. 

We  must,  however,  remember  that  the  court  has  said 
that  the  Fourteenth  Amendment  was  not  intended  to 
change  the  whole  theory  of  the  relations  of  the  state  and 
federal  governments  to  each  other  and  of  both  govern- 
ments to  the  people.^^ 

48  See  sees.  119-126,  supra. 

49  See  sec.  Ill,  supra. 

50  See  sees.  88,  126,  supra. 

51  See  note  51  in  Chapter  4,  supra.  Consider  also  Money,  On  the  Question 
of  the  Validity  of  the  Fourteenth  Amendment  to  the  Constitution,  71  Cent. 
L.  J.  112;  note  in  30  Am.  L.  Rev.  894-897. 


CHAPTER  VI. 

JUST  COMPENSATION. 

INTRODUCTORY. 

147.  Provision  in  Fifth  Amendment. 

148.  Due  process  and  just  compensation. 

149.  Equal  protection  and  just  compensation. 

150.  Bearing  of  requirement  upon  rate  regulation. 

151.  Unreasonable  or  discriminatory  regulations. 

152.  Not  enforcing  common  law. 

153.  Indemnification  by  government  so  far  as  reductions  are  undue. 

154.  AMOUNT  OF  RETURN. 

VALUE  OF  PROPERTY. 

155.  Present  value  of  property. 

156.  Cost  and  capitalization  not  to  be  considered. 

157.  Producing  plant  equally  efficient. 

158.  Significance  of  term  "present  time." 

159.  Tangible  property. 

160.  Cost  of  corporation  itself. 

161.  Cost  of  business  of  corporation. 

162.  Capitalization  of  earning  capacity. 

163.  Stock  and  bonds. 

164.  Value  as  system. 

165.  Apportionment  of  value. 

166.  Particular  classes  of  traffic. 

167.  Unprofitable  parts  of  the  property. 

168.  Smyth  v.  Ames  criticized. 

169.  Rough  estimates  of  value. 

170.  Summary  as  to  value. 

OPERATING  EXPENSES. 

171.  General  principles. 

172.  Transportation. 

173.  Maintenance. 

174.  Payments  to  stockholders  and  bondholders. 

NET  EARNINGS. 

175.  What  earnings  are  to  be  considered. 

176.  Proving  amount  of  earnings. 

177.  Rates  fair  to  public. 

178.  Rates  fair  to  railroad. 

179.  Constitutional  rate  of  return. 

268 


INTRODUCTORY.  269 

180.  No  particular  rate  fixed  by  Supreme  Court. 

181.  Other  decisions  in  conflict. 

182.  Distribution  between  stockholders  and  bondholders. 

183.  EXCEPTIONAL  CONDITIONS. 

PARTICULAR  RATES. 

184.  Decisions  that  only  schedule  as  entirety  may  be  considered. 

185.  Decisions  on  particular  rates. 

186.  Discussion  on  considering  merely  schedule  as  entirety. 

187.  Mileage  books. 

INTRODUCTORY. 

Provision  in  Fifth  Amendment. 

147.  The  Fifth  Amendment  contains  the  provision  ' '  nor 
shall  private  property  be  taken  for  public  use  without 
just  compensation. ' '  This  clause,  of  course,  applies  only 
to  the  organs  of  the  federal  government.^  And  apparently 
no  decision  of  the  Supreme  Court  in  rate  cases  has  ever 
been  based  upon  it. 

Due  process  and  just  compensation. 

148.  The  court  has,  however,  frequently  declared  that 
a  similar  requirement  of  just  compensation  is  placed 
upon  the  states  by  the  due  process  clause  of  the  Four- 
teenth Amendment ;  ^  and  presumably  it  would  hold  that 
the  due  process  clause  of  the  Fifth  Amendment  places  a 
similar  restraint  upon  the  federal  government.^  While 
the  reasons  advanced  in  support  of  this  position  are  un- 
convincing,^ such  is  the  position  of  the  court. 

Equal  protection  and  just  compensation. 

149.  We  have  also  pointed  out  that  the  court  might 

1  See  Chapter  3,  notes  1,  2,  21  et  seq. 

2  See  Chapter  4,  note  160  et  seq. 

3  See  Chapter  3,  note  6. 

4  See  sees.  119-126,  supra. 


270  JUST  COMPENSATION. 

more  properly  base  upon  tlie  equal  protection  provision 
its  decision  that  a  state  may  not  take  private  property  for 
public  use  without  just  compensation.^ 

Bearing  of  requirement  upon  rate  regulation. 

150.  This  requirement,  it  has  been  held,  while  it  does 
not  take  away  the  power  of  the  government  to  reduce 
railroad  rates,^  does  limit  that  power."  The  extent  to 
which  the  power  is  limited  is  discussed  in  a  num- 
ber of  cases  which  were  decided  under  the  due  process 
provision  or  the  equal  protection  provision;  but  as  the  de- 
cisions to  which  we  shall  now  refer  are  all  based  upon 
the  proposition  that  the  Constitution  requires  the  pay- 
ment of  just  compensation  when  private  property  is  taken 
for  public  use,  those  decisions  may  be  examined  most  ap- 
propriately in  the  present  chapter. 

Unreasonable  or  discriminatory  regulations. 

151.  It  is  conceivable  that  rates  which  would  yield 
what  abstractly  considered  would  be  just  compensation 
to  the  earner  might  be  in  other  respects  so  unreasonable 

5  See  sees.  146,   136,  supra. 

6  See  sec.  142,  supra;  22  Harv.  L.  Rev.  at  263;  Munn  v.  Illinois  (1874) 
94  U.  S.  113,  125,  24  L.  ed.  77;  Railroad  Co.  v.  Richmond  (1877)  96  U.  S. 
521,  529,  24  L.  ed.  734;  Transportation  Co.  v.  Chicago  (1878)  99  U.  S.  635, 
642,  25  L.  ed.  336. 

7  See  sees.  119,  138,  supra.  In  view  of  these  decisions  it  is  not  necessary 
for  us  to  consider  such  questions  as  whether  the  clause  relates  to  rate  regula- 
tion: see  Smalley,  Railroad  Rate  Control  (Publications  of  Am.  Econ. 
Assn.)  89  et  seq.;  whether  railroad  property  is  "private"  property  within 
the  meaning  of  the  Amendment:  see  Western  U.  T.  Co.  v.  Pennsylvania  R. 
Co.  (1904)  195  U.  S.  540,  25  Sup.  Ct.  133,  49  L.  ed.  312;  whether  the  im- 
posing of  regulations  which  under  normal  circumstances  allow  less  than 
a  stated  rate  of  return  to  the  carrier  can  be  considered  a  "taking"  within 
the  meaning  of  the  Constitution ;  and  whether  the  fixing  of  the  charges 
for  carrying  for  members  of  the  general  public  may  constitute  a  violation 
of  the  prohibition  of  the  taking  for  a  "public"  use:  see  Noble  State  Bank 
v.  Haskell  (1911)  219  U.  S.  575,  580,  31  Sup.  Ct.  299,  300,  55  L.  ed.  341. 


INTRODUCTORY.  271 

or  SO  discriminatory  as  to  be  held  unconstitutional.*  Even 
where  the  carrier  did  not  raise  the  question,  it  is  possible 
that  the  objection  might  be  raised  by  shippers  or  passen- 
gers in  one  part  of  the  state  or  one  part  of  the  country  or 
by  one  or  more  classes  of  shippers  or  classes  of  passen- 
gers.^ A  railroad  company,  however,  cannot  contest  the 
validity  of  a  regulation  upon  the  ground  that  it  affects 
unconstitutionally  a  patron  of  that  company.^*' 

Not  enforcing  common  law. 

152.  By  way  of  caution  it  may  be  added  that  in  enforc- 
ing the  provisions  to  which  we  have  referred  the  court  is 
simply  enforcing  constitutional  restraints.  It  does  not 
say  that  in  spite  of  legislative  or  administrative  action  the 
rights  and  duties  of  carriers  are  still  to  be  measured  by 
the  common  law.  It  is  not  declaring  that  legislative  or 
administrative  action  which  departs  from  the  common 
law  is  invalid.  It  could  not  justifiably  take  any  such  po- 
sition.^ ^  And,  therefore,  decisions  concerning  the  com- 
mon law  restraints  upon  common  carriers  are  not  strictly 
in  point. 

Indemnification  by  government  so  far  as  reductions  are 
undue. 

153.  An  able  writer  upon  the  subject  ^^  has  pointed  out 

8  See  sees.  89,  118,  121,  137,  supra.  And  compare  Portland  Ry.,  L.  &  P. 
Co.  V.  Railroad  Comn.  of  Oregon  (1913)  229  U.  S.  397,  33  Sup.  Ct.  820,  57 
L.  ed.  1248. 

9  See,  however.  Board  of  R.  Comrs.  v.  Symns  Grocer  Co.  (1894)  53 
Kan.  207,  35  Pac.  217;  Brooklyn  U.  G.  Co.  v.  New  York  (1906)  111  N.  Y. 
App.  Div.  70,  100  N.  Y.  Supp.  570. 

10 Interstate  Com.  Comn.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S. 
88,  30  Sup.  Ct.  651,  54  L.  ed.  946.     See  also  note  71  in  Chapter  9,  infra. 

11  See  sec.  33,  supra. 

12  Smalley,  Railroad  Rate  Control  (Publications  of  Am.  Econ.  Assn.)  p. 
53,  note,  chap.  7. 


272  JUST  COMPENSATION. 

that  the  railroad  is  not  necessarily  entitled  to  just  com- 
pensation from  the  shippers  for  services  rendered,  but 
that  if  the  government  should  provide  for  governmental 
indemnification  of  the  carrier  for  losses  if  the  reductions 
in  rates  should  be  found  to  be  undue  in  so  far  as  they  were 
undue  the  statute  would  be  constitutional  regardless  of 
the  extent  of  the  reduction  of  rates,  and  no  injunction  per- 
manent or  temporary  restraining  its  enforcement  could  be 
granted  upon  the  ground  that  it  violated  the  requirement 
of  just  compensation.  This  position  seems  to  be  thor- 
oughly sound,^^  for  it  is  not  necessary  for  the  govern- 
ment to  make  compensation  for  property  taken  in  ad- 
vance of  the  actual  taking  or  even  at  the  time  when  that 
property  is  taken. ^^ 

AMOUNT  OF  RETURN. 

154.  If  a  state  or  the  federal  government  should  at- 
tempt to  limit  all  of  the  charges  for  transportation  by  a 
railroad  which  were  subject  to  that  government,  the 
schedule  of  rates  as  an  entirety  might  be  attacked  upon 
the  ground  that  it  did  not  yield  to  the  carrier  the  rate  of 
return  to  which  it  was  entitled  under  the  Constitution. 
In  support  of  this  contention  the  carrier  or  the  creditor  or 
stockholder  of  the  carrier  who  brought  the  action  should 
show  the  value  of  the  property  used  in  its  business  as  a 
carrier  and  the  net  earnings.^  ^     Those  are  the  normal 

13  See  also  Manigault  v.  Springs  (1905)  199  U.  S.  473,  485,  486,  26  Sup. 
Ct.  127,  132,  136,  50  L.  ed.  274. 

i4Crozier  v.  Fried.  Krupp  Aktiengesellschaft  (1912)  224  U.  S.  290,  306, 
24  Sup.  Ct.  488,  492,  56  L.  ed.  771. 

15  Of  course,  in  arriving  at  the  amount  of  the  net  earnings  it  would  be 
necessary  to  show  the  amount  of  the  gross  earnings  and  the  proportion  of 
the  gross  earnings  whicli  might  be  properly  expended  as  operating  ex- 
penses. 


VALUE  OF  PROPERTY.  273 

factors  in  determining  the  validity  of  the  schedule  as  an 
entirety  although  other  factors  not  inconsistent  with 
them  may  modify  the  conclusions  to  be  drawn  from  the 
normal  factors  or  may  lead  to  entirely  different  conclu- 
sions. Those  other  possible  factors  vary  according  to  the 
circumstances  existing  in  each  particular  case. 

VALUE  OF  PROPERTY. 

Present  value  of  property. 

155.  The  value  of  the  property  upon  which  the  carrier 
is  entitled  to  earn  a  revenue  is  the  value  of  the  property 
actually  used  in  its  business  at  the  time  when  the  traffic  is 
carried.  This  statement  rests  upon  several  recent  opin- 
ions of  the  Supreme  Court;  ^^  and  while  there  may  be 

16  In  Lincoln  G.  &  E.  L.  Co.  v.  Lincoln  (1912)  223  U.  S.  349,  358,  32  Sup. 
Ct.  271,  272,  56  L.  ed.  466,  the  court  said,  "That  the  company  is  entitled  to 
a  fair  return  upon  the  value  of  the  property  at  the  time  of  the  inquiry,  is 
the  rule."  In  Willcox  v.  Consolidated  Gas  Co.  (1909)  212  U.  S.  19,  41, 
62,  29  Sup.  Ct.  192,  195,  200,  53  L.  ed.  382,  the  court  said,  "There  must  be 
a  fair  return  upon  the  reasonable  value  of  the  property  at  the  time  it  is 

being  used  for  the  public The  value  of  the  property  is  to  be 

determined  as  of  the  time  when  the  inquiry  is  made  regarding  the  rates. 
If  the  property,  which  legally  enters  into  the  consideration  of  the  question 
of  rates,  has  increased  in  value  since  it  was  acquired,  the  company  is  en- 
titled to  the  benefit  of  such  increase.  This  is,  at  any  rate,  the  general  rule. 
We  do  not  say  there  may  not  possibly  be  an  exception  to  it,  where  the 
property  may  have  increased  so  enormously  in  value  as  to  render  a  rate 
permitting  a  reasonable  return  upon  such  increased  value  unjust  to  the 
public.  How  such  facts  should  be  treated  is  not  a  question  now  before  us, 
as  this  case  does  not  present  it."  In  Knoxville  v.  Ivnoxville  W.  Co.  (1909) 
212  U.  S.  1,  29  Sup.  Ct.  148,  53  L.  ed.  371,  the  court  assumed  that  the 
basis  of  estimate  was  the  value  of  the  property  as  it  then  stood:  the  dis- 
cussion was  concerning  the  method  of  ascertaining  that  value.  See  also 
Minnesota  Rate  Cases— Simpson  v.  SheparJ  (1913)  230  U.  S.  352,  434, 
454,  457,  33  Sup.  Ct.  729,  754,  762,  763,  57  L.  ed.  1511,  including  quotation 
in  note  21,  infra;  Stanislaus  County  v.  San  J.  &  K.  R.  C.  &  I.  Co.  (1904) 
192  U.  S.  201,  213,  215,  24  Sup.  Ct.  241,  246,  247,  48  L.  ed.  406;  San  Diego 
L.  &  T.  Co.  V.  Jasper  (1903)  189  U.  S.  439,  442,  23  Sup.  Ct.  571,  572,  47  L. 
ed.  892;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)    174  U.  S.  739,  757, 

i8 


274  JUST  COMPENSATION. 

found  in  some  earlier  opinions  language  which  does  not 
altogether  support  that  position/^  that  basis  of  estimate 

19  Sup.  Ct.  804,  811,  43  L.  ed.  1154;  Smyth  v.  Ames  (1898)  171  U.  S.  361, 
365,  18  Sup.  Ct.  888,  889,  43  L.  ed.  197.  And  see  Reagan  v.  Farmers'  L.  & 
T.  Co.  (1894)  154  U.  S.  362,  412,  14  Sup.  Ct.  1047,  1060,  38  L.  ed.  1014.  In 
harmony  with  the  above  cases  is  Railroad  Comn.  of  La.  v.  Cumberhmd  T. 
&  T.  Co.  (1909)  212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed.  577,  which  de- 
cides that  if  a  portion  of  the  amount  set  aside  from  gross  earnings  to  cover 
depreciation  was  not  spent  for  renewals  but  for  extensions  and  additions, 
the  portion  of  the  depreciation  fund  so  spent  cannot  be  added  to  the 
amount  upon  which  the  company  is  entitled  to  earn  revenue.  Presumably 
the  money  was  needed  for  a  reserve  fund  to  pay  for  renewals  ultimately 
and  its  use  for  extensions  and  additions  merely  served  to  maintain  the 
total  value  of  the  company's  property  and  not  to  increase  the  total  value 
of  that  property. 

17  In  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U.  S.  257,  22 
Sup.  Ct.  900,  46  L.  ed.  1151,  the  court  speaks  of  a  fair  return  upon  the 
"capital  invested"  although  it  affirms  the  decision  of  the  state  court  with- 
out commenting  upon  the  objection  in  its  opinion  that  "Defendant's  counsel 

did  show  what  the  road  had  cost  up  to  June  1,  1899 But  not 

a  particle  of  proof  was  presented  as  to  the  present  value  or  cost  of  repro- 
duction," or  upon  the  syllabus  prepared  by  the  state  court  which  says, 
"Courts  cannot  assume  that  the  cost  of  reproduction  of  a  line  of  railway, 
or  that  the  present,  as  compared  with  the  original  cost  of  construction,  is 
the  amount  of  stock  and  bonds  outstanding,  or  that  it  is  what  the  road  has 
cost  up  to  time  of  trial:"  State  ex  rel.  R.  &  W.  Comn.  v.  Minneapolis  &  St. 
L.  R.  Co  (1900)  80  Minn.  191,  83  N.  W.  60.  Cotting  v.  Kansas  C.  S.  Y. 
Co.  (1901)  183  U.  S.  79,  91,  22  Sup.  Ct.  30,  35,  46  L.  ed.  92,  involves 
charges  by  a  stock  yards  company,  but,  as  the  court  points  out,  the  com- 
pany was  engaged,  not  in  performing  public  services,  as  are  carriers,  water 
companies,  etc.,  but  merely  in  performing  services  in  which  the  public  has 
an  interest,  so  that  there  is  merely  dictum  in  the  statement,  "As  to  parties 
engaged  in  performing  a  public  service  ....  tlie  court  .... 
has  declared  that  the  present  value  of  the  property  is  the  basis  by  which 
the  test  of  reasonableness  is  to  be  determined,  although  the  actual  cost  is 
to  be  considered,  and  that  the  value  of  the  services  rendered  to  each  indi- 
vidual is  also  to  be  considered."  See  also  Smyth  v.  Ames  (1898)  169  U. 
8.  466,  546,  18  Sup.  Ct.  418,  434,  42  L.  ed.  819,  quoted  in  see.  168,  infra, 
and  references  to  Smyth  v.  Ames  in  Minnesota  Rate  Cases — Simpson  v. 
Shepard  (1913)  230  U.  S.  352,  435,  33  Sup.  Ct.  729,  755,  57  L.  ed.  1511. 
In  a  case  concerning  turnpike  rates  it  Avas  said  that  "the  amount  tliat  may 
have  been  really  and  necessarily  invested  in  the  enterprise"  should  be  con- 
sidered: Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578,  597, 
17  Sup.  Ct.  198,  205,  41  L.  ed.  500.  In  Dow  v.  Beidelman  (1888)  125  U.  S. 
680,  690,  8  Sup.  Ct.  1028,  1030,  1031,  31  L.  ed.  841,  purchasers  under  fore- 


VALUE  OF  PROPERTY.  275 

would  unquestionably  be  used  by  the  Supreme  Court  at 
the  present  day,^  ^  and  it  is  the  only  conclusion  which  rests 
upon  sound  reason.^^ 

Cost  and  capitalization  not  to  be  considered. 

156.  As  the  court  said  in  Smyth  v.  Ames,^"  ''the  rea- 
sonableness of  a  schedule  of  rates  must  be  determined  by 
the  facts  as  they  exist  when  it  is  sought  to  put  such  rates 
into  operation. ' '  And  this  is  true  concerning  the  value  of 
the  property.  If  the  government  appropriated  that  prop- 
erty the  extent  of  its  duty  would  be  to  pay  for  the  value 
which  the  property  possessed  at  the  time  of  the  appro- 
priation; and  in  deciding  whether  a  rate  regulation  is  an 

closure  relied  upon  the  original  cost  of  the  road  and  the  amount  of  bonds 
outstanding,  but  the  court  said,  "It  certainly  cannot  be  presumed  that  the 
price  paid  at  the  sale  under  the  decree  of  foreclosure  equaled  the  original 
cost  of  the  road,  or  the  amount  of  outstanding  bonded  debt,  without  any 
proof  of  the  sum  invested  by  the  reorganized  corporation  or  its  trustees. 
The  court  has  no  means,  if  it  would  under  any  circumstances  have  the 
power,  of  determining  that  the  rate  of  three  cents  a  mile  fixed  by  the  leg- 
islature is  unreasonable." 

18  Expressions  of  the  lower  courts  to  the  same  effect  may  be  found — for 
example  in  the  opinions  in  Western  U.  T.  Co.  v.  State  (1912)  31  Okla. 
415,  419,  121  Pac.  1069,  1071;  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911) 
29  Okla.  429,  433,  118  Pac.  354,  355,  38  L.  R.  A.  N.  S.  1209;  Cumberland 
T.  &  T.  Co.  V.  Louisville  (1911)  187  Fed.  637,  642;  Cedar  Rapids  G.  L.  Co. 
V.  Cedar  Rapids  (1909)  144  Iowa,  426,  432,  120  N.  W.  966,  968;  San  J.  & 
K.  R.  C.  &  L  Co.  V.  Stanislaus  County  (1908)  163  Fed.  567,  575;  Consoli- 
dated Gas  Co.  V.  New  York  (1907)  157  Fed.  849,  855;  Spring  V.  W.  v, 
San  Francisco  (1904)  165  Fed.  657,  680,  697;  Brunswick  &  T.  W.  Dist.  v. 
Maine  W.  Co.  (1904)  99  Me.  371,  380,  59  Atl.  537,  540;  Matthews  v. 
Board  of  Corp.  Comrs.  of  N.  C.  (1901)  106  Fed.  7,  9;  Steenerson  v.  Great 
N.  Ry.  Co.  (1897)  69  Minn.  353,  373,  374,  72  N.  W.  713,  715;  and  cases 
in  note  31,  infra.  And  see  Whitten,  Valuation  of  Public  Service  Corpora- 
tions, chap.  6.    Compare  authorities  cited  in  Whitten,  op.  cit.,  chap.  5. 

19  Other  bases  are  discussed  in  Wyman,  Public  Service  Corporations,  p, 
967  et  seq. 

20  (1898)  171  U.  S.  361,  365,  18  Sup.  Ct.  888,  889,  43  L.  ed.  197,  modi- 
fying the  decision  in  the  same  case  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418, 
42  L.  ed.  819. 


276  JUST  COMPENSATION. 

appropriation  of  the  railroad's  property  pro  tanto  the 
value  of  the  property  certainly  ought  to  be  estimated 
upon  the  same  basis. 

Of  course,  the  present  value  of  the  property  may  be 
either  less  or  greater  than  the  amount  of  money  which 
was  actually  invested  in  the  railroad.^ ^    Mistakes  of  con- 

sHn  Minnesota  Rate  Cases— Simpson  v.  Sliepard  (1913)  230  U.  S.  352, 
454,  33  Sup.  Ct.  729,  762,  57  L.  ed.  1511,  the  court  says,  "It  is  clear  that  in 
ascertaining  the  present  value  we  are  not  limited  to  the  consideration  of 
the  amount  of  the  actual  investment.  If  that  has  been  reckless  or  improvi- 
dent, losses  may  be  sustained  which  the  community  does  not  underwrite. 
As  the  company  may  not  be  protected  in  its  actual  investment,  if  the 
value  of  the  property  be  plainly  less,  so  the  making  of  a  just  return  for  the 
use  of  the  property  involves  the  recognition  of  its  fair  value  if  it  be  more 
than  it  cost.  The  property  is  held  in  private  ownership,  and  it  is  that 
property,  and  not  the  original  cost  of  it,  of  which  the  owner  may  not  be 
deprived  without  due  process  of  law."  In  Stanislaus  County  v.  San  Joa- 
quin &  K.  R.  C.  &  I.  Co.  (1904)  192  U.  S.  201,  214,  24  Sup.  Ct.  241,  246,  48 
L.  ed.  406,  the  court  says,  "The  original  cost  may  have  been  too  great; 
mistakes  of  construction,  even  thovigh  honest,  may  have  been  made,  which 
necessarily  enhanced  the  cost;  more  property  may  have  been  acquired  than 
necessary  or  needful  for  the  purpose  intended.  Other  circumstances  might 
exist  which  would  show  the  original  rates  much  too  large  for  fair  or  rea- 
sonable compensation  at  the  present  time."  The  court  then  points  out 
that  mistakes  of  the  chief  engineer  had  cost  the  company  a  large  amount 
of  money.  In  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S. 
739,  757,  19  Sup.  Ct.  804,  811,  43  L.  ed.  1154,  the  court  declares  that  "The 
property  may  have  cost  more  than  it  ought  to  have  co.st,  and  its  outstand- 
ing bonds  for  money  borrowed  and  which  went  into  the  plant  may  be  in 
excess  of  the  real  value  of  the  property."  See  also  In  re  Advances  in  Rates 
—Eastern  Case  (1911)  20  I.  C.  C.  243,  257,  258;  San  Diego  L.  &  T.  Co.  v. 
Jasper  (1903)  189  U.  S.  439,  442,  23  Sup.  Ct.  571,  572,  47  L.  ed.  892;  Rea- 
gan v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  412,  14  Sup.  Ct.  1047, 
1060,  38  L.  ed.  1014;  Dow  v.  Beidelman  (1888)  125  U.  S.  680,  690,  8  Sup. 
Ct.  1028,  1030,  1031,  31  L.  ed.  841;  authorities  cited  in  Whitten,  Valuation 
of  Public  Service  Corporations,  p.  84  et  seq.,  and  in  Wyman,  Public  Ser- 
vice Corporations,  pp.  967  et  seq.,  991,  992,  995;  Robinson  Railway  Pas- 
senger Rates,  16  Yale  Rev.  341,  369;  Louisville  &  N.  R.  Co.  v.  Railroad 
Comn.  of  Alabama  (1912)  196  Fed.  800,  820,  822;  Shepard  v.  Northern  P. 
Ry.  Co.  (1911)  184  Fed.  765,  803;  Cumberland  T.  &  T.  Co.  v.  Louisville 
(1911)  187  Fed.  637,  642,  644;  Consolidated  G.  Co.  v.  New  York  (1907) 
157  Fed.  849,  855,  861;  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.  (1904) 
i'9  Me.  371,  378,  379,  59  Atl.  537,  540;  Steenerson  v.  Great  N.  Ry.  Co. 
(1897)   09  Minn.  .353,  373,  374,  72  N.  W.  713,  715;  Griffin  v.  Goldsboro  W. 


VALUE  OF  PROPERTY.  277 

struction  may  have  been  made;  structures  or  equipment 
may  have  depreciated  or  become  obsolete ;  ^^  or  some  ca- 
tastrophe, even,  may  have  destroyed  millions  of  dollars 
worth  of  property.^^  Or,  on  the  other  hand,  the  funds  of 
the  company  may  have  been  spent  so  wisely,  the  cost  of 
materials  and  labor  may  have  so  increased,  or  the  terri- 
tory through  which  the  railroad  runs  may  have  been  so 
developed,  that  the  resources  of  the  company  are  worth 
far  more  than  the  amount  of  the  actual  investments^ 

And  what  is  true  concerning  investment  is  still  more 
true  concerning  capitalization.^^  Stock  may  have  been 
watered;  hopes  may  have  been  capitalized;  money  may 
have  been  spent  extravagantly  or  dishonestly.-^  Or,  on 
the  other  hand,  stock  may  have  been  issued  above  par; 
betterments  may  have  been  paid  for  largely  out  of  cur- 

Co.  (1898)  122  N.  C.  206,  211,  30  S.  E.  319,  320,  41  L.  R.  A.  240,  242; 
Capital  C.  G.  Co.  v.  Des  Moines  (1896)  72  Fed.  829;  Missouri  P.  Ry.  Co.  v. 
Smith   (1895)   60  Ark.  221,  29  S.  W.  752.     Compare  note  30,  infra. 

22  See  sec.  157,  infra. 

23  See  Spring  V.  W.  Co.  v.  San  Francisco  (1908)   165  Fed.  667,  712. 

24  See  In  re  Advances  in  Rates— Western  Case  (1911)  20  I.  C.  C.  307, 
338;  quotation  from  Willcox  v.  Consolidated  Gas  Co.  (1909)  212  U.  S.  19, 
52,  29  Sup.  Ct.  192,  200,  53  L.  ed.  382,  in  note  16,  supra.  Compare  note  28, 
infra. 

25  On  this  paragraph  in  general  see  Wyman,  Public  Service  Corpora- 
tions, p.  976  et  seq.;  Report  of  Industrial  Commission,  vol.  19,  p.  405  et 
seq.;  San  Diego  L.  &  T.  Co.  v.  National  City  (1899)  174  U.  S.  739,  757, 
19  Sup.  Ct.  804,  811,  43  L.  ed.  1154;  Smyth  v.  Ames  (1898)  169  U.  S.  466, 
544,  18  Sup.  Ct.  418,  433,  42  L.  ed.  819;  Dow  v.  Beidelman  (1888)  125  U. 
S.  680,  690,  8  Sup.  Ct.  1028,  1030,  1031,  31  L.  ed.  841;  Texas  &  P.  Ry.  Co. 
V.  Railroad  Comn.  of  La.  (1911)  192  Fed.  280,  286;  In  re  Rebecchi  (1906) 
100  N.  Y.  Supp.  335,  336;  Griffin  v.  Goldsboro  W.  Co.  (1898)  122  N.  C. 
206,  211,  30  S.  E.  319,  320,  41  L.  R.  A.  240,  242;  Noyes,  American  Railroad 
Rates,  27;  note  60,  infra. 

26  See,  e.  g.,  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  11,  29 
Sup.  Ct.  148,  151,  53  L.  ed.  371;  Lincoln  G.  &  E.  L.  Co.  v.  Lincoln  (1909)  182 
Fed.  926,  929 ;  Report  of  Industrial  Commission,  vol.  19,  p.  405  et  seq.  And 
for  an  interesting  article  on  overcapitalization,  though  it  is  not  strictly  in 
point,  see  Wickersham,  The  Capital  of  a  Corporation,  22  Harv.  L.  Rev.  319. 


278  JUST  COMPENSATION. 

rent  revenue  and  not  added  to  the  capitalization;  and  the 
funds  of  the  company  may  have  been  spent  with  hon- 
esty and  with  unusual  shrewdness.^'^  But  there  is  cer- 
tainly no  injustice  in  saying  that  the  present  value  of  the 
property  rather  than  either  the  amount  of  the  investment 
or  the  capitalization  should  govern.  The  same  rule  ap- 
plies in  the  business  world  at  large.  In  all  such  cases  the 
earnings  are  based  simply  upon  the  present  ability  to  pro- 
duce results  and  not  upon  financial  history .^^ 

Producing  plant  equally  efl&cient. 

157.  The  present  value  of  the  property  seems  to  be  the 
cost  of  producing  at  the  present  time  -^  property  which  is 
its  equal  in  efficiency.^*^    From  the  cost  of  reproducing 

27  See,  e.  g.,  Wright  v.  Georgia  R.  &  B.  Co.  (1910)  216  U.  S.  420,  30 
Sup.  Ct.  242,  54  L.  ed.  544,  which  was  not  a  rate  case. — In  the  early  days, 
whik  there  was  a  great  deal  of  stock-watering,  there  were  also  frequently 
large  grants  to  the  railroads  by  the  federal,  state  and  municipal  govern- 
ments. 

28 See  also  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  (1912)  196  Fed. 
800,  821,  822;  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429, 
433,  434,  118  Pac.  354,  355,  356,  38  L.  R.  A.  N.  S.  1209;  Consolidated  G.  Co. 
v.  New  York  (1907)  157  Fed.  849,  855,  856;  Matthews  and  Thompson, 
Public  Service  Company  Rates  and  the  Fourteenth  Amendment,  15  Harv. 
L.  Rev.  249,  264,  265;  Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col. 
L.  Rev.  532,  534,  540,  541 ;  Fenwick,  The  Judicial  Test  of  a  Reasonable  Rail- 
road Rate,  8  Mich.  L.  Rev.  445,  450,  451.  Contra,  Pennsylvania  R,  Co.  v. 
Philadelphia  County  (1908)  220  Pa.  100,  115,  68  Atl.  676,  679,  15  L.  R.  A. 
N.  S.  108,  117,  which  is  clearly  unsound  and  against  the  weight  of  mod- 
ern authority. — With  reference  to  contentions  such  as  those  set  forth  in 
Whitten,  Valuation  of  Public  Service  Corporations,  chap.  5,  that  the  actual 
cost  of  the  property  should  be  considered,  it  may  be  pointed  out  in  addi- 
tion that  the  original  value  of  the  property  is  not  shown  by  showing  the 
number  of  dollars  which  the  property  must  have  cost  originally.  The  dol- 
lar is  not  a  fixed  standard  of  value.  Its  purchasing  power  varies.  And  so 
it  would  be  unfair  to  say  that  because  a  property  cost  a  thousand  dollars 
seventy-five  years  ago  a  thousand  dollars  of  to-day  adequately  represents 
the  amount  of  the  investment. 

29  On  the  significance  of  the  term  "present  time"  see  sec.  158,  infra. 

^0  On  the  question  of  equal  eflBciency  see  In  re  Arkansas  Rate  Cases  (1911) 


VALUE  OF  PROPERTY.  279 

new  the  present  plant,  deduction  must  be  made  for  the 
depreciation  which  has  actually  taken  place;  ^^  a  further 
sum  must,  it  seems,  be  allowed  for  the  difference  in  value 

187  Fed,  290,  319;  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.  (1904)  99  Me. 
371,  387,  388,  59  Atl.  537,  543,  544;  Capital  C.  G.  L.  Co.  v.  Des  Moines 
(1896)  72  Fed.  829,  844;  Whitten,  Valuation  of  Public  Service  Corpora- 
tions, sees.  54  et  seq.,  73,  75  et  seq. ;  Robinson,  Railway  Passenger  Rates,  16 
Yale  Rev.  341,  360.  It  does  not  seem  necessary  that  the  value  of  property 
immediately  along  the  company's  line  of  road  be  considered  if  property  can 
be  bought  for  less  along  a  somewhat  diflferent  route:  see  Cedar  R.  G.  L.  Co. 
v.  Cedar  Rapids  (1909)  144  Iowa,  426,  437,  438,  120  N.  W.  966,  970;  Min- 
nesota Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  456,  457,  33 
Sup.  Ct.  729,  763,  57  L.  ed.  1511;  and  quotations  in  Whitten,  Valuation  of 
Public  Service  Corporations,  pp.  137,  139,  which  fully  answer  Wyman, 
Public  Service  Corporations,  p.  995.  In  Spring  V.  W,  Co.  v.  San  Francisco 
(1908)  165  Fed.  667,  698,  the  court  declared,  "If  the  company  sees  fit  to 
use,  for  the  mere  cachement  of  water,  lands  which  are  much  more  valuable 
for  other  purposes,  it  is  unreasonable  in  fixing  rates  to  appraise  such 
lands  for  more  than  they  are  worth  as  watershed  areas."  With  this  note 
compare  note  21,  supra. 

31  In  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352, 
457,  458,  469,  33  Sup.  Ct.  729,  763,  764,  768,  57  L.  ed.  1511,  the  failure  to  de- 
duct for  depreciation  was  one  of  the  reasons  for  reversing  the  action  of  the 
lower  court.  To  the  same  effect  is  Knoxville  v.  Knoxville  W.  Co.  (1909)  212 
U.  S.  1,  29  Sup.  Ct.  148,  53  L.  ed.  371.  On  necessity  of  considering  present 
value  see  note  16,  supra.  As  showing  that  ascertaining  the  cost  of  re- 
production less  depreciation  is  ordinarily  the  only  fair  method  of  as- 
certaining the  present  value  of  the  property,  consider  Montana,  W.  &  S. 
R.  Co.  V.  Morley  (1912)  198  Fed.  991,  1004;  Western  Ry.  of  Alabama 
V.  Railroad  Comn.  (1912)  197  Fed.  954,  959;  Louisville  &  N.  R.  Co.  v. 
Railroad  Comn.  (1912)  196  Fed.  800,  820,  821;  Pioneer  T.  &  T.  Co.  v. 
Westenhaver  (1911)  29  Okla.  429,  433,  434,  441,  118  Pac.  354,  355,  356, 
358,  38  L.  R.  A.  N.  S.  1209;  San  Joaquin  &  K.  R.  C.  &  I.  Co.  v.  Stanis- 
laus Coimty  (1911)  191  Fed.  875,  881;  Cumberland  T.  &  T.  Co.  v.  Louisville 
(1911)  187  Fed.  637,  642;  Shepard  v.  Northern  P.  Ry.  Co.  (1911)  184  Fed. 
765,  802;  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  438, 
439,  440,  120  N.  W.  966,  970,  971;  Consolidated  G.  Co.  v.  New  York  (1907) 
157  Fed.  849,  855,  856;  In  re  Rebecchi  (1906)  100  N.  Y.  Supp.  335;  Steen- 
erson  v.  Great  N.  Ry.  Co.  (1897)  69  Minn.  353,  373,  374,  72  N.  W.  713,  715; 
Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col.  L.  Rev.  532,  545,  549. 
Compare  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  437, 
438,  120  N.  W.  966,  970. — The  entire  question  of  depreciation  is  discussed 
at  length  in  Whitten,  Valuation  of  Public  Service  Corporations,  chaps.  17- 
19;  compare  ibid.,  chap,  16, 


280  JUST  COMPENSATION. 

between  the  existing  plant  and  a  plant  of  modem  de- 
sign ;  32  property  which  is  not  needed  for  the  business  of 
the  company  must  not  be  included  in  the  basis  upon  which 
a  revenue  from  transportation  must  be  allowed;  ^^  and 
where  the  plant  is  markedly  in  excess  of  the  require- 
ments such  excess  is  not  entitled  to  earn  a  revenue  from 
transportation.  3^ 

32  "If  the  existing  plant  is  in  any  respect  antiquated  or  inefficient  as 
compared  with  a  new  plant  of  modern  design  and  of  the  same  capacity,  and 
shows  a  greater  expense  per  unit  of  output  or  work  done,  then  the  cost  of 
procuring  such  modern  plant  will  fix  the  maximum  sum  which  a  prospec- 
tive purchaser  of  the  existing  plant,  though  willing  to  buy,  could  afford 
to  pay.  The  company's  plant  may  be  worth  much  or  little,  but  cannot  well 
in  any  event  be  worth  more  than  the  cost  to  procure  a  new  plant  of  equal 
capacity  and  modern  design:"  Matthews  and  Thompson,  Public  Service 
Company  Rates  and  the  Fourteenth  Amendment,  15  Harv.  L.  Rev.  249,  267. 
See  also  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.  (1904)  99  Me.  371,  38G- 
388,  59  Atl.  537,  543,  544.  Compare  Bailly,  The  Legal  Basis  of  Rate  Regu- 
lation, 11  Col.  L.  Rev.  532,  548;  Wyman,  Public  Service  Corporations,  pp. 
972,  973. 

33  "It  is  not  just  to  compel  consumers  to  pay  for  more  than  they  receive, 
or  to  pay  complainant  an  income  on  property  which  is  not  actually  being 
used  in  gathering  and  furnishing  water.  If  in  this  case  the  company,  in 
anticipation  of  the  growth  of  the  city  and  its  future  needs,  acquired  prop- 
erty for  future  use  at  a  cost  of  hundreds  of  thousands  of  dollars  which  is 
now  worth  millions,  it  has  acted  wisely,  but  it  should  be  satisfied  with  the 
goodness  of  its  bargain  and  the  enhanced  value  of  its  property,  without 
asking  in  addition  gratuities  from  its  customers  in  the  way  of  higher  rates. 
When  the  property  does  come  into  necessary  service  the  company  is  enti- 
tled to  have  it  credited  at  its  then  fair  and  reasonable  value  for  rate-fixing 
purposes:"  Spring  V.  W.  Co.  v.  San  Francisco  (1908)  165  Fed.  667,  697. 
See  also  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352, 
440,  33  Sup.  Ct.  729,  757,  57  L.  ed.  1511;  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids 
(1909)   144  Iowa,  426,  437,  120  N.  W.  966,  970;  notes  34,  80,  81,  infra. 

34  "If  a  plant  is  built,  as  probably  this  was,  for  a  larger  area  than  it 
finds  itself  able  to  supply,  or,  apart  from  that,  if  it  does  not,  as  yet,  have 
the  customers  contemplated,  neither  justice  nor  the  Constitution  requires 
that,  say,  two  thirds  of  the  contemplated  number  should  pay  a  full  return, 
.  .  .  ,  It  hardly  can  have  meant  that  a  system  constructed  for  six 
thousand  acres  should  have  a  full  return  upon  its  value  from  five  hundred, 
if  those  were  all  that  it  supplied:"  San  Diego  L.  &  T.  Co.  v.  Jasper  (1903) 
189  U.  S.  439,  446,  447,  23  Sup.  Ct.  571,  574,  47  L.  ed.  892.  "The  rates  must 
be  reasonable  to  the  company,  but  they  must,  in  any  event,  be  reasonable 


VALUE  OF  PROPERTY.  281 

Significance  of  term  * 'present  time." 

158.  The  term  ''present  time"  has  not  a  precise  mean- 
ing. Prices  fluctuate  and  therefore  it  would  not  do  to  say 
that  the  cost  at  the  present  time  necessarily  means  the 
cost  on  a  particular  day.  Prices  at  the  institution  of  the 
suit  or  when  testimony  is  given  may  be  different  from 
prices  at  the  time  when  the  question  is  decided  by  the 
court  of  last  resort.  The  court  should  remember  this  when 
it  passes  upon  the  constitutionality  of  rate  regulations, 
especially  when  it  passes  upon  such  questions  several 
years  after  the  testimony  has  been  submitted.^-"^    Present 

to  the  public.  If  a  railroad  is  built  into  a  new,  sparsely  settled  territory 
with  a  view  of  serving  a  large  future  population  and  developing  business, 
the  Constitution  does  not  require  the  few  people  and  the  small  business  of 
the  present  time  to  pay  rates  which  will  yield  an  income  equal  to  the  full 
return  to  be  gathered  when  the  country  is  populated  and  business  developed 
to  the  full  capacity  of  the  road:"  Southern  P.  Co.  v.  Bartine  (1909)  170 
Fed.  725,  767.  "Suppose  that  a  five  hundred  horse  power  engine  was  used 
for  pumping  when  a  one  hundred  horse  power  engine  would  do  as  well.  As 
property  to  be  fairly  valued  the  larger  engine  might  be  more  valuable  than 
the  smaller  one,  yet  it  could  not  be  said  that  it  would  be  reasonable  to 
compel  the  public  to  pay  rates  based  upon  the  value  of  the  unnecessarily 
expensive  engine:"  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.  (1904)  99 
Me.  371,  376,  59  Atl.  537,  539.  See  also  Steenerson  v.  Great  N.  Ry.  Co. 
(1897)  69  Minn.  353,  381,  396,  72  N.  W.  713,  718,  724;  Consolidated  G. 
Co.  V,  New  York  (1907)  157  Fed.  849;  Boise  City  I.  &  L.  Co.  v.  Clark 
(1904)  131  Fed.  415,  422;  Capital  City  G.  L.  Co.  v.  Des  Moines  (1896) 
72  Fed.  829,  844;  Long  Branch  Comn.  v.  Tintern  M.  W.  Co.  (1905) 
70  N.  J.  Eq.  71,  80,  85,  88,  62  Atl.  474,  477,  479,  480;  In  re  Arkansas 
Railroad  Rates  (1909)  168  Fed.  720;  San  Diego  L.  &  T.  Co.  v.  National 
City  (1899)  174  U.  S.  739,  757,  758,  19  Sup.  Ct.  804,  811,  43  L.  ed.  1154; 
Whitten,  Valuation  of  Public  Service  Corporations,  pp.  43,  52,  56,  72, 
chap.  10;  Wyman,  Public  Service  Corporations,  pp.  970-974;  sec.  167, 
infra. — It  must  be  remembered,  however,  that  a  railroad  is  often  required 
by  law  to  do  some  business  which  is  unprofitable. 

35  Consider  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  16,  29 
Sup.  Ct.  148,  153,  53  L.  ed.  371,  where  the  case  was  pending  over  seven 
years;  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913)  230  U.  S.  352, 
377-380,  33  Sup.  Ct.  729,  732,  57  L.  ed.  1511,  pending  over  six  years;  Louis- 
ville &  N.  R.  Co.  V.  Railroad  Comn.  (1912)  196  Fed.  800,  pending  five 
years;  Smalley,  Railroad  Rate  Control   (Publications  of  the  American  Eco- 


282  JUST  COMPENSATION. 

cost,  then,  is  simply  an  approximate  sum,  and  its  approxi- 
mation to  a  precise  sum  depends  upon  the  extent  of  fluc- 
tuations in  prices. 

Average  prices  would  be  unsatisfactoiy  where  there 
had  been  recent  but  very  marked  changes  in  prices  which 
appeared  likely  to  last  for  some  time,  as  where  they  were 
caused  by  new  inventions  or  by  radical  changes  in  the  tar- 
iff; ^^  and,  on  the  other  hand,  if  a  railroad  may  be  re- 
quired to  do  s-ome  of  its  business  at  considerably  less  pro- 
fit than  it  could  be  required  to  do  its  business  as  a  whole, 
it  seems  that  on  like  principle  the  court  should  not  pay 
attention  to  fluctuations  in  prices  of  materials  or  operat- 
ing expenses  unless  those  changes  are  of  importance  be- 
cause of  the  number  or  importance  of  the  items  or  be- 
cause of  their  immediate  effect  or  because  of  the  time  over 
which  they  extend,  although  changes  which  are  more 
marked  may  affect  the  constitutionality  of  the  rates.^'^ 
The  grades  and  curves  of  the  railroad's  tracks  follow  in 
a  general  way  the  lines  of  the  country  through  which  the 
railroad  passes,  but  they  certainly  do  not  follow  those 
lines  in  every  detail ;  and  so  also  while  the  value  which  is 
used  as  a  basis  of  estimate  should  be  affected  by  marked 
economic  changes  it  should  not  reflect  every  fluctuation 
in  prices. 

Tangible  property. 

159.  The  property  of  the  company,  of  course,  includes 

nomic  Assn.)  114-117;  Hadley,  The  Eleventh  Amendment,  66  Cent.  L.  J. 
71,  76;  Smyth  v.  Ames  (1898)  171  U.  S.  ,361,  18  Sup.  Ct.  888,  43  L.  ed. 
197 ;  end  of  note  44  in  Chapter  5,  supra. 

36  See,  however,  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa, 
426,  436,  437,  120  N.  W.  966,  970;  Whitten,  Valuation  of  Public  Service 
Corporations,  p.  202  et  seq.,  for  discussions  on  ''average  price  versus  pres- 
ent price." 

37  See  note  124,  infra. 


VALUE  OF  PROPERTY.  283 

its  land,  structures,  rolling  stock  and  working  capital.^^ 
And  the  cost  of  that  property  should  be  held  to  include 
the  expenditures  necessary  to  secure  it,  such  as  the  cost 
of  acquiring  land,  "^  surveying,  material,  labor,  engineer- 
ing, superintendence,  bookkeeping,  legal  expenses,'^^  the 
securing  of  funds,^^  interest,^-  insurance,  taxes  and  any 
other  incidental  expenditures  which  it  is  necessary  to 
make  during  the  construction  and  equipment  of  the  road 
for  its  construction  and  equipment.^  ^ 

In  the  Minnesota  Rate  Cases  '^^  the  court  refuses  to  con- 

38  Cumberland  T.  &  T.  Co.  v.  Louisville  (1911)  187  Fed.  637,  646,  647; 
Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429,  439,  440,  441,  118 
Pac.  354,  357,  358,  38  L.  R.  A.  N.  S.  1209;  Lincoln  G.  &  E.  L.  Co.  v.  Lin- 
coln (1909)  182  Fed.  926,  928;  Consolidated  G.  Co.  v.  New  York  (1907) 
157  Fed.  849,  859;  Whitten,  Valuation  of  Public  Service  Corporations,  chap. 
14. 

39  This  includes  the  expense  of  abstracts,  recording  deeds,  etc. :  Whitten, 
Valuation  of  Public  Service  Corporations,  p.  128. 

40  Compare  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426, 
438,  120  N.  W.  966,  970. 

41  See  Whitten,  Valuation  of  Public  Service  Corporations,  chap.  13.  Com- 
pare Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  438,  120  N. 
W,  966,  970;  Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col.  L.  Rev. 
532,  640,  note. — This  should  include  pay  for  services  rendered  in  the  sale  of 
bonds  but  not  ordinary  discount  on  those  bonds. 

42  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429,  438,  118  Pac. 
354,  357,  38  L.  R.  A.  N.  S.  1209 ;  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co. 
(1904)   99  Me.  371,  383,  59  Atl.  537,  542. 

43  In  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352. 
451,  455,  33  Sup.  Ct.  729,  761,  763,  57  L.  ed.  1511,  the  objection  of  the  court 
may  be  to  the  way  in  which  such  amounts  were  estimated  and  included  in 
those  cases. — On  the  subject  of  this  section  see  also  Whitten,  Valuation  of 
Public  Service  Corporations,  chaps.  12,  16;  Matthews  and  Thompson,  Pub- 
lic Service  Company  Rates  and  the  Fourteenth  Amendment,  15  Harv.  L. 
Rev.  249,  267;  Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col.  L.  Rev. 
532,  550-552,  640;  Fenwick,  The  Test  of  a  Reasonable  Rate,  8  Mich.  L.  Rev. 
445,  453;  Wyman,  Public  Service  Corporations,  pp.  969,  970;  Esch,  Phys- 
ical Valuation  of  Railroad  Property,  13  The  Brief,  42,  54. 

44  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  452 
et  seq.,  469,  33  Sup.  Ct.  729,  761  et  seq.,  768,  57  L.  ed.  1511. 


284  JUST  COMPENSATION. 

sider  the  value  of  the  property  to  the  company;  and  this 
position  is  unquestionably  correct,  for  such  a  value  de- 
pends upon  the  earning  capacity  of  the  railroad,  which, 
as  we  shall  see,^^  may  not  properly  be  considered  in  de- 
termining the  principal  upon  which  the  company  is  enti- 
tled to  earn  a  revenue.  In  that  case  the  court  also  refuses 
to  attribute  to  the  land  a  greater  value  than  the  normal 
market  value  of  land  in  the  vicinity.  It  does  not  seem 
necessary  that  the  value  of  property  immediately  along 
the  company's  present  line  of  road  be  considered  if  prop- 
erty can  be  bought  for  less  along  a  somewhat  different 
route:  the  question  is  simply  the  cost  of  producing  a  road 
equally  efficient.'*^  But  it  does  seem  that  the  company 
should  be  allowed  to  earn  a  revenue  upon  the  amount 
which  it  would  be  necessary  for  a  company  purchasing 
in  the  most  economical  manner  to  pay  for  a  roadbed  in 
the  most  economical  location,  and  if  it  is  a  fact  that  in 
condemning  land  a  railroad  is  usually  obliged  to  pay  more 
than  the  market  value,^^  and  that  fact  is  proved,  it  should 
be  recognized  by  the  court.^* 

45  Sec.  162,  infra. 

46  See  note  30,  supra. 

47  Whitten,  Valuation  of  Public  Service  Corporations,  p.  126,  declares 
that  "Usually  in  the  general  state  railroad  appraisals  the  value  of  land 
taken  for  right  of  way  has  not  been  limited  by  the  market  value  of  adja- 
cent land.  An  allowance  has  been  made  for  the  higher  price  that  the  rail- 
road would  have  to  pay  on  account  of  damages  to  land  not  taken  and  on 
account  of  the  fact  that  in  condemning  land  for  railway  purposes  the  rail- 
way company  is  usually  required  to  pay  an  amount  in  excess  of  market 
value." 

48  Compare  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913)  230  U.  S. 
352,  33  Sup.  Ct.  729,  761,  57  L.  ed.  l.'^ll.  The  court  would  hardly  assume 
as  a  matter  of  law  that  a  railroad  can  be  run  without  any  losses  on  ac- 
count of  negligence  of  its  employees  and  refuse  to  recognize  a  limited 
amount  of  expenditures  for  such  purposes  as  legitimate  operating  expendi- 
tures. 


VALUE  OF  PROPERTY.  285 

Cost  of  corporation  itself. 

160.  Moreover,  as  large  enterprises  must  as  a  general 
rule  be  conducted  by  corporations  and  not  by  individuals, 
it  seems  clear  that  the  corporation  must  be  allowed  to 
earn  a  revenue  upon  the  money  which  must  be  spent  in 
order  that  it  may  come  into  life,  upon  the  amount  which 
must  be  paid  to  the  state  for  the  right  to  organize  and 
upon  the  amount  which  must  be  paid  to  promoters,  so  far 
as  the  expenditures  for  that  purpose  are  reasonable.^ ^ 

Cost  of  business  of  corporation. 

161.  Something  must  also  be  allowed  for  the  fact  that 
the  company  is  a  going  concern.^"    Even  the  most  efficient 

49  See  Whitten,  Valuation  of  Public  Service  Corporations,  pp.  261  et  seq., 
643;  Esch,  Physical  Valuation  of  Railroad  Property,  13  The  Brief,  42,  54, 
59.  Compare  Cumberland  T.  &  T.  Co.  v.  Louisville  (1911)  187  Fed.  637, 
646,  647;  Cedar  Rapids  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426, 
438,  120  N.  W.  966,  970. 

50  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429,  433  et  seq., 
118  Pac.  354,  359  et  seq.,  38  L.  R.  A.  N.  S.  1209,  and  authorities  there 
cited;  Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col.  L.  Rev.  at  G40, 
and  authorities  there  cited;  Missouri,  K.  &  T.  Ry.  Co.  v.  Love  (1910)  177 
Fed.  493,  496,  497;  C.  H.  Venner  Co.  v.  Urbana  Waterworks  (1909;  174 
Fed.  348,  352;  Spring  V.  W.  Co.  v.  San  Francisco  (1908)  165  Fed.  667,  693, 
Consider  also  Whitten,  Valuation  of  Public  Service  Corporations,  chap. 
22,  especially  p.  495  et  seq.  Compare  Montana,  W.  &  S.  R.  Go.  v.  Mor- 
ley  (1912)  198  Fed.  991,  1005;  and  cases  in  note  52,  infra.  In  Omaha 
V.  Omaha  W.  Co.  (1910)  218  U.  S.  180,  202,  203,  30  Sup.  Ct.  615,  620, 
54  L.  ed.  991,  which,  the  court  carefully  pointed  out,  simply  concerned 
the  ascertainment  of  value  under  a  contract  of  sale  and  was  not  a  rate 
case,  the  court  said,  "The  option  to  purchase  excluded  any  value  on  ac- 
count of  unexpired  franchise;  but  it  did  not  limit  the  value  to  the  bare 
bones  of  the  plant,  its  physical  properties,  such  as  its  lands,  its  machin- 
ery, its  water  pipes  or  settling  reservoirs,  nor  to  what  it  would  take  to 
reproduce  each  of  its  physical  features.  The  value,  in  equity  and  justice, 
must  include  whatever  is  contributed  by  the  fact  of  the  connection  of  the 
items  making  a  complete  and  operating  plant.  The  difference  between  a 
dead  plant  and  a  live  one  is  a  real  value,  and  is  independent  of  any  fran- 
chise to  go  on,  or  any  mere  good  will  as  between  such  a  plant  and  its  cus- 
tomers.   That  kind  of  good  will,  as  suggested  in  Willcox  v.  Consolidated  G. 


286  JUST  COMPENSATION. 

management  cannot  build  up  a  thoroughly  efficient  or- 
ganization without  an  expenditure  in  building  it  up  which 
cannot  be  treated  entirely  as  current  operating  expendi- 
ture. Nor  can  it  develop  a  profitable  clientage  without 
similar  expenditure.^^  It  is  true  that  part,  perhaps  most, 
of  its  clientage  may  be  the  result  of  its  having  a  partial 
or  complete  monopoly  of  the  business,  and  to  that  extent 
the  possession  of  a  clientage  may  be  disregarded  by  the 
government  when  it  regulates  rates.^-    But,  on  the  other 

Co.  (1909)  212  U.  S.  19,  20  Sup.  Ct.  192,  53  L.  ed.  382,  is  of  little  or  no 
commercial  value  when  the  business  is,  as  here,  a  natural  monopoly,  with 
which  the  consumer  must  deal,  whether  he  will  or  no.  That  there  is  a 
difference  between  even  the  cost  of  duplication,  less  depreciation,  of  the 
elements  making  up  the  water  company  plant,  and  the  commercial  value  of 
the  business  as  a  going  concern,  is  evident.  Such  an  allowance  was  upheld 
in  National  W.  Co.  v.  Kansas  City  (1894)  62  Fed.  853,  27  L.  R.  A.  827, 
where  the  opinion  was  by  Mr.  Justice  Brewer.  We  can  add  nothing  to  the 
reasoning  of  the  learned  justice,  and  shall  not  try  to.  That  case  has  been 
approved  and  followed.  .  .  .  No  such  question  was  considered  in 
either  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  29  Sup.  Ct.  148, 
53  L.  ed.  371,  or  in  Willcox  v.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  29 
Sup.  Ct.  192,  53  L.  ed.  382.  Both  cases  were  rate  cases,  and  did  not  con- 
cern the  ascertainment  of  value  under  contracts  of  sale." 

51  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429,  446,  118  Pac. 
354,  360,  38  L.  R.  A.  N.  S.  1209;  Des  Moines  W.  Co.  v.  Des  Moines  (1911) 
192  Fed.  193,  198;  Missouri,  K.  &  T.  Ry.  Co.  v.  Love  (1910)  177  Fed.  493, 
496,  497;  National  W.  Co.  v.  Kansas  City  (1894)  62  Fed.  853,  865,  27  L.  R. 
A.  827,  837;  Miller,  Some  Questions  in  Connection  with  State  Rate  Regula- 
tion, 8  Mich.  L.  Rev.  108,  116. 

52  Willcox  V.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  48,  52,  29  Sup.  Ct. 
192,  198,  200,  53  L.  ed.  382;  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1912) 
223  U.  S.  655,  669,  32  Sup.  Ct.  389,  390,  56  L.  ed.  594;  Cedar  R.  G.  L.  Co. 
V.  Cedar  Rapids  (1909)  144  Iowa,  426,  434,  120  N.  W.  966,  969;  Home  T. 
Co.  V.  Carthage  (1911)  235  Mo.  644,  664,  139  S.  W.  547,  551;  Bristol  v. 
Bristol  &  W.  Waterworks  (1901)  23  R.  I.  274,  278,  49  Atl.  974,  975;  Na- 
tional W.  Co.  v.  Kansas  City  (1894)  62  Fed.  853,  865,  27  L.  R.  A.  827; 
Whitten,  Valuation  of  Public  Service  Corporations,  sec.  699;  Bailly,  The 
Legal  Basis  of  Rate  Regulation,  11  0)1.  L.  Rev.  532,  644;  Matthews  and 
Thompson,  Public  Service  Company  Rates  and  the  Fourteenth  Amendment, 
15  Harv.  L.  Rev.  249,  267,  268;  Wyman,  Public  Service  Corporations,  p. 
989.  See  also  22  Harv.  L.  Rev.  at  263;  Gloucester  W.  S.  Co.  v.  Gloucester 
( 1901 )  179  Mass.  365,  60  N.  E.  977.    Compare  Monongahela  N.  Co.  v.  United 


VALUE  OF  PROPERTY.  287 

hand,  it  may  be  necessary  to  spend  a  considerable  amount 
of  money  in  order  to  secure  a  well-developed  organization 
or  a  well-developed  clientage  and,  therefore,  a  public  ser- 
vice corporation  must  be  entitled  to  earn  a  revenue  upon 
the  amount  which  a  well-managed  plant  starting  at  the 
present  time  in  the  place  of  the  present  corporation 
would  have  to  pay  in  order  to  build  up  such  an  organiza- 
tion and  such  a  business  as  that  which  the  present  cor- 
poration possesses.^^ 

Capitalization  of  earning  capacity. 

162.  It  seems  clear,  however,  that  the  valuation  of  the 
property  cannot  properly  be  based  even  in  part  upon  a 
capitalization  of  the  earning  capacity  of  the  company. 
Such  a  capitalization  may  unquestionably  be  used  by  the 
state  if  it  so  desires  as  a  basis  for  taxation.^^    But  it  does 

states  (1893)  148  U.  S.  312,  13  Sup.  Ct.  622,  37  L.  ed.  463;  Pveagan  v. 
Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  410,  14  Sup.  Ct.  1047,  1059,  38 
L.  ed.  1014,  in  the  light  of  Whitten,  op.  cit.,  sec.  11.  The  decision  in  Louis- 
ville &  N.  R.  Co.  V.  Railroad  Comn.  of  Alabama  (1912)  196  Fed.  800,  822, 
is  clearly  wrong. 

53  See  discussion  in  WHiitten,  Valuation  of  Public  Service  Corporations, 
chap.  24.  The  position  taken  in  the  text  is  slightly  different  from  that 
taken  in  Bailly,  The  Legal  Basis  of  Rate  Regulation,  11  Col.  L.  Rev.  at 
642-644,  where  it  is  said  that  a  public  service  corporation  is  entitled  to 
earn  a  revenue  upon  the  amount  whicli  a  well-managed  business  starting  at 
the  present  time  would  have  to  pay  in  order  to  build  up  a  business  sufficient 
to  make  it  reasonably  profitable.  See  authorities  there  cited.  Compare 
Montana,  W.  &  S.  R.  Co.  v.  Morley  (1912)  198  Fed.  991,  1005,  and  also  the 
childish  remarks  in  Spring  V.  W,  v.  San  Francisco  (1908)  165  Fed.  667, 
697. 

54  People  V.  New  York  State  Board  (1905)  199  U.  S.  1,  25  Sup.  Ct.  705, 
50  L.  ed.  65.  See  also  San  Francisco  N.  Bk.  v.  Dodge  (1905)  197  U.  S.  70, 
25  Sup.  Ct.  348,  49  L.  ed.  669;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Sullivan 
(1909)  173  Fed.  456;  Missouri,  K.  &  T.  Ry.  Co.  v.  Shannon  (1907)  100 
Tex.  379,  100  S.  W.  138,  10  L.  R.  A.  N.  S.  681;  Bailly,  The  Legal  Basis  of 
Rate  Regulation,  11  Col.  L.  Rev.  532,  644. 


288  JUST  COaiPENSATION. 

not  follow  that  it  must  be  considered  in  determining  the 
constitutionality  of  a  state's  regulation  of  charges.^^ 

The  earning  capacity  of  a  public  service  corporation  in 
the  presence  of  rate  regulation  may  be  different  from  its 
earning  capacity  in  the  absence  of  regulation.  This  is 
elementar}".  The  question  is  as  to  the  amount  of  earning 
capacity  which  must  be  left  to  the  corporation.  It  would 
be  inconsistent  to  measure  that  amount  by  the  amount 
which  the  corporation  might  earn  in  the  absence  of  regu- 
lation. And  it  would  be  absurd  to  attempt  to  measure 
that  amount  by  itself.^*^ 

55  In  addition  to  the  discussion  in  this  section  see  Minnesota  Rate  Cases — 
Simpson  v.  Shepard  (1913)  230  U.  S.  352,  451  et  seq.,  33  Sup.  Ct.  729,  761, 
et  seq.,  57  L.  ed.  1511,  referred  to  in  sec.  159,  supra,  and  discussion  and  cita- 
tion of  authorities  in  Whitten,  Valuation  of  Public  Service  Corporations, 
chaps.  1,  3,  sec.  721. 

58  "Earning  capacity  cannot  determine  the  value  of  the  property  of  a 
railroad  upon  wliich  its  rates  must  make  a  fair  return.  Earnings  are  de- 
pendent upon  rates,  and  value  indicated  in  earnings  manifestly  has  no  rela- 
tion to  the  reasonableness  of  rates.  Otherwise,  the  more  the  railroad 
charged  and  thereby  earned,  the  more  it  would  have  the  right  to  charge:" 
Noyes,  American  Railroad  Rates,  28.  "Earning  capacity  cannot  logically 
be  a  measure  of  the  present  value  of  the  plant  of  either  a  regulated  or  an 
unregulated  public  utility.  The  result  sought  for  is  the  basis  of  earning 
capacity.  If,  then,  earning  capacity  is  taken  as  the  measure  of  its  own 
basis,  the  calculator  is  following  the  circumference  of  a  circle,  and  is  in  a 
fair  way  of  solving  the  problem  of  perpetual  motion:"  Bailly,  The  Legal 
Basis  of  Rate  Regulation,  11  Col.  L.  Rev.  532,  544.  "It  may  be  asserted 
with  confidence  that  any  method  of  valuation  based  upon  capitalization  of 
earnings  for  any  period,  or  upon  the  selling  value  of  the  capital  stock 
(whether  the  property  is  overcapitalized  or  undercapitalized),  is  wholly 
inadmissible:"  Matthews  and  Tliompson,  Public  Service  Company  Rates 
and  the  Fourteenth  Amendment,  15  Harv.  L.  Rev.  249,  268.  "The  impossi- 
bility of  basing  reasonable  rates  on  a  market  value  that  is  itself  determined 
by  reasonable  rates  is  apparent.  It  is  a  clear  case  of  reasoning  in  a  circle. 
We  have  the  evident  absurdity  of  requiring  the  answer  to  the  problem 
before  we  can  undertake  its  solution.  The  advocates  of  the  market  value 
theory  cannot  really  mean  what  they  say.  Market  value  is  not  really  a 
part  of  the  process  but  the  final  result.  It  includes  in  many  cases  a  capi- 
talization of  certain  monopoly  profits  and  the  monopoly  value  thus  cre- 
ated is  set  up  as  justifying  the  higher  rates  which  have  in  fact  created  the 


VALUE  OF  PROPERTY.  289 

Moreover,  if  a  capitalization  of  the  earning  capacity 
were  allowed  in  fixing  the  valuation  of  the  property  in 
rate  cases,  the  railroad  having  the  largest  volume  of  traf- 
fic would  be  for  that  very  reason  allowed  to  charge  the 
highest  rates  per  unit  of  transportation. 

Stock  and  bonds. 

163.  As  we  have  already  seen,  the  par  value  of  the  total 
amount  of  stock  and  bonds  issued  does  not  show  the  pres- 
ent value  of  the  property  of  the  company.^ '^  And  the  mar- 
ket value  of  the  stock  and  bonds  depends  so  largely  upon 
the  earnings  of  the  company  that,  obviously,  as  the  earn- 
ing capacity  of  the  property  cannot  be  used  as  a  test  of  its 
value  in  rate  cases,^^  the  market  value  of  the  stock  and 
bonds  does  not  furnish  any  satisfactory  test  of  the  value 
of  the  property.^^ 

The  further  fact  that  companies  often  issue  stock  and 
bonds  in  order  to  buy  the  stock  and  bonds  of  other  rail- 
roads, also  renders  the  capitalization  of  the  road  under  in- 
vestigation unreliable  as  a  test  of  the  amount  upon  which 

monopoly  value:"  Whitten,  Valuation  of  Public  Service  Corporations,  pp. 
54,  55.  See  also  Martin,  Recent  Federal  Court  Decisions  Affecting  State 
Laws  Regulating  Freight  and  Passenger  Rates,  21  Yale  L.  J.  117,  124; 
Kennebec  W.  Dist.  v.  Waterville  ( 1902)  97  Me.  185,  202,  54  Atl.  6,  20-21,  60 
L.  R.  A.  856;  Beale  and  Wyman,  Railroad  Rate  Regulation,  p.  354;  note  52, 
supra.  Compare  In  re  Arkansas  Rate  Cases  (1911)  187  Fed.  290,  319; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Love  (1910)  177  Fed.  493,  496;  Matthews  v. 
Board  of  Corp.  Comrs.   (1901)    106  Fed.  7,  9. 

57  See  sec.  156,  supra. 

58  See  sec.  162,  supra. 

59  See  also  Montana,  W.  &  S.  R.  Co.  v.  Morley  (1912)  198  Fed.  991,  1007; 
Matthews  and  Thompson,  Public  Service  Company  Rates  and  the  Four- 
teenth Amendment,  15  Harv.  L.  Rev.  249,  268;  Beale  and  Wyman,  Railroad 
Rate  Regulation,  pp.  353,  354;  Bailly,  The  Legal  Basis  of  Rate  Regulation, 
11  Col.  L.  Rev.  532,  542,  note  34.  Compare  In  re  Arkansas  Rate  Cases 
(1911)   187  Fed.  290,  318,  319. 

19 


290  JUST  COMPENSATION. 

that  road  should  receive  a  revenue  from  transportation.^*^ 

Value  as  system. 

164.  We  have  already  seen  that  while  the  earning  ca- 
pacity of  the  road  may  be  capitalized  for  the  purpose  of 
taxation  it  may  not  be  capitalized  to  furnish  a  basis  for 
judging  the  constitutionality  of  rate  regulations.^^  So 
also,  while  in  tax  cases  the  courts  may  recognize  the  fact 
that  the  separate  parts  of  the  property  of  the  company 
have  as  parts  of  a  larger  system  a  greater  value  than  they 
would  possess  if  considered  separately,^^  that  increased 
value  cannot  be  considered  as  such  in  rate  cases.®^  So  far 
as  the  increase  in  value  rests  upon  greater  earning  ca- 
pacity it  is  an  unsafe  guide ;  ^^  and  so  far  as  it  is  due  to 
expenditures  made  not  for  tangible  property  but  in  order 
to  build  up  the  corporation  and  its  organization  and  its 
clientage,  that  value  may  be  more  appropriately  consid- 
ered under  other  heads.^^  In  short,  for  the  purposes  of 
rate  regulation,  the  present  value  which  is  to  be  used  as  a 

60  See  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913)  230  U.  S,  352, 
440,  33  Sup.  Ct.  729,  757,  57  L.  ed.  1511;  Shepard  v.  Northern  P.  Ry.  Co. 
(1911)  184  Fed.  765,  802;  Consolidated  G.  Co.  v.  New  York  (1907)  157 
Fed.  849,  861. 

61  See  sec.  162,  supra. 

62  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Backus  (1894)  154  U.  S.  439, 
444,  14  Sup.  Ct.  1122,  1123,  38  L.  ed.  1041;  Chicago,  B.  &  Q.  Ry.  Co.  v. 
Babcock  (1907)  204  U.  S.  585,  598,  27  Sup.  Ct.  326,  329,  51  L.  ed.  636; 
Western  U.  T.  Co.  v.  Missouri  (1903)  190  U.  S.  412,  23  Sup.  Ct.  730,  47 
L.  ed.  1116;  State  v.  Savage  (1902)  65  Neb.  714,  754,  755,  91  N.  W.  716, 
724.  See  also  Patterson,  The  United  States  and  the  States  Under  the  Con- 
stitution, 2d  ed.,  p.  40,  note.  Compare  Fargo  v.  Hart  (1904)  193  U.  S. 
490,  24  Sup.  Ct.  498,  48  L.  ed.  761;  26  Harv.  L.  Rev.  1,  20. 

03  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  450, 
451,  33  Sup.  Ct.  729,  761,  57  L.  ed.  1511.  Compare  Missouri,  K.  &  T.  Ry. 
Co.  V.  Love  (1910)  177  Fed.  493,  496. 

64  See  sec.  162,  supra. 

65  See  sees.  160,  161,  supra. 


VALUE  OF  PROPEKTY.  291 

basis  is  simply  the  cost  of  producing  at  the  present  time 
property,  organization  and  clientage  of  equal  value. 

But,  on  the  other  hand,  on  the  same  principle,  it  seems 
that  the  increased  amount  which  must  often  be  paid  for 
land  because  it  is  to  be  used  by  a  railroad  company  ought 
to  be  included  in  the  present  value  of  the  property;  ®^  that 
the  partial  decreases  and  the  partial  increases  in  the  cost 
of  the  road  if  it  is  built  throughout  at  one  time  instead  of 
by  piecemeal  construction  must  be  included  in  the  esti- 
mate; ^^  and  that  the  estimate  must  include  expenditures 
which  are  not  made  at  the  time  of  the  original  construc- 
tion of  the  road  but  which  are  in  reality  deferred  con- 
struction costs,  such  as  the  cost  of  such  repairing  of  em- 
bankments as  is  due  to  their  settling  because  of  newness.®^ 

Apportionment  of  value. 

165.  In  order  to  ascertain  the  total  value  within  a 
state  upon  which  a  railroad  is  entitled  to  earn  a  revenue 
we  must  add  to  the  value  of  the  tangible  property  within 
the  state  a  share  of  the  total  intangible  value  of  the  cor- 
poration. The  court  has  sustained  state  laws  which  taxed 
that  proportion  of  the  total  value  of  the  corporation  which 
the  trackage  within  the  state  bore  to  the  total  trackage.^^ 
But  the  value  for  taxation  is  not  the  value  for  rate  regula- 
tion;^*^ and  while  it  is  possible  that  apportionment  accord- 
ing to  trackage  would  not  be  held  unconstitutional  in  rate 
cases,  such  an  apportionment  does  not  seem  to  furnish  the 

66  See  discussion  in  sec.  159,  supra. 

67  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29  Okla.  429,  437,  118  Pac. 
354,  357,  38  L.  R.  A.  N.  S.  1209.  See  also  Whitten,  Valuation  of  Public 
Service  Corporations,  chap.  15. 

68  See  Whitten,  Valuation  of  Public  Service  Corporations,  chap.  18. 
68  See  cases  in  note  62,  supra. 

70  See  authorities  in  sees.  162,  164,  supra. 


292  JUST  COMPENSATION. 

fairest  method  of  arriving  at  the  value  within  the  state. 
It  seems  that  the  fairest  method  would  be  to  take  all  of  the 
elements  of  value  which  can  be  definitely  localized  (which 
may  include  more  than  merely  tangible  property),  find 
the  proportion  of  such  elements  of  value  which  are  within 
the  state  to  those  in  all  states  within  which  the  company 
operates,  and  assign  in  similar  proportion  those  elements 
of  value  which  cannot  be  localized."^ 

Where  an  attack  is  made  upon  the  validity  of  a  schedule 
of  intrastate  rates  as  an  entirety,  it  is  necessary  to  recog- 
nize the  fact  that  to  a  large  extent  the  same  property 
within  the  state  is  used  in  both  interstate  and  intrastate 
traffic,  and  it  is  necessary  to  apportion  the  value  of  such 
property  and  declare  what  portion,  plus  the  property 
which  is  used  exclusively  for  local  traffic,  is  entitled  to 
earn  a  revenue  from  intrastate  businessJ^ 

The  apportionment,  at  least  in  the  absence  of  excep- 
tional circumstances,^^  must  be  based,  not  upon  the  pro- 
portion between  the  gross  earnings  from  the  two  classes 
of  business, ^^  as  was  done  by  some  of  the  lower  federal 

71  Of  course,  property  not  used  in  the  operation  of  the  road,  such  as 
stock  and  bonds  of  other  roads,  cannot  be  included  in  the  estimate:  Fargo 
V.  Hart  (1904)  193  U.  S.  490,  24  Sup.  Ct.  498,  48  L.  ed.  761.  See  also 
Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  440,  33 
Sup.  Ct.  729,  757,  57  L.  ed.  1511.  On  terminals  see  Judson,  Interstate  Com- 
merce, 2d  ed.,  p.  196;  Steenerson  v.  Great  N.  Ry.  Co.  (1897)  69  Minn.  353, 
72  N.  W.  713. 

72  See  sec.  12,  supra. 

73  If,  for  example,  the  interstate  and  intrastate  traffic  diflFered  in  that 
one  consisted  much  more  largely  than  the  other  of  low-grade  freight,  such 
as  coal  or  stone,  it  is  possible  that  this  fact  should  be  taken  into  consid- 
eration. 

74  As  was  said  in  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913) 
230  U.  S.  352,  459,  461,  33  Sup.  Ct.  729,  764,  765,  57  L.  ed.  1511,  "It  is 
said  that  a  division  of  the  value  of  the  property  according  to  gross 
earnings  is  a  division  according  to  the  'value  of  the  use,'  and  there- 
fore proper.  But  it  would  seem  to  be  clear  that  the  value  of  the 
use   is   not   shown   by   gross   earnings.      The   gross   earnings   may   be   con- 


VALUE  OF  PROPERTY.  293 

courts,"^^  but  upon  the  extent  to  whicli  the  facilities  of  the 
company  are  used;  "^^  and,  since  the  cars  usually  carry  at 

sumed  by  expenses,  leaving  little  or  no  profit.  If,  for  example,  the  intra- 
state rates  were  so  far  reduced  as  to  leave  no  net  profits,  and  the  only  pro- 
fitable business  was  the  interstate  business,  it  certainly  could  not  be  said 
that  the  value  of  the  use  was  measured  by  the  gross  revenue.  ...  If 
the  property  is  to  be  divided  according  to  the  value  of  the  use,  it  is  plain 
that  the  gross-earnings  method  is  not  an  accurate  measure  of  that 
value.  .  .  .  The  value  of  the  use,  as  measured  by  return,  cannot  be 
made  the  criterion  when  the  return  itself  is  in  question.  If  the  return,  as 
formerly  allowed,  be  taken  as  the  basis,  then  the  validity  of  the  state's 
reduction  would  have  to  be  tested  by  the  very  rates  which  the  state  de- 
nounced as  exorbitant.  And,  if  the  return  as  permitted  under  the  new 
rates  be  taken,  then  the  state's  action  itself  reduces  the  amount  of  value 
upon  which  the  fairness  of  the  return  is  to  be  computed."  See  also  Mis 
souri  Rate  Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913)  230  U.  S. 
474,  504,  33  Sup.  Ct.  975,  981,  982,  57  L.  ed.  1571;  Allen  v.  St.  Louis,  I.  M. 
&  S.  Ry.  Co.  (1913)  230  U.  S.  553,  557,  33  Sup.  Ct.  1030,  1032,  57  L.  ed. 
1625;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  (1900)  176  U.  S.  167,  175, 
177,  20  Sup.  Ct.  336,  339,  44  L.  ed.  417;  Martin,  Recent  Federal  Court  Da 
cisions  Affecting  State  Laws  Regulating  Freight  and  Passenger  Rates,  21 
Yale  L.  J.  117,  124;  and  note  56,  supra. 

75  In  some  cases  the  apportionment  was  based  upon  the  relation  of  the 
gross  revenue  from  intrastate  transportation  to  the  gross  revenue  from  the 
entire  transportation  within  the  state:  Western  Ry.  of  Alabama  v.  Rail- 
road Comn.  (1912)  197  Fed.  954,  969  (with  which  compare  197  Fed.  at 
964)  ;  Shepard  v.  Northern  P.  Ry.  Co.  (1911)  184  Fed.  765,  811,  812;  Mis- 
souri, K.  &  T.  Ry.  Co.  V.  Love  (1910)  177  Fed.  493;  Ames  v.  Union  P.  Ry. 
Co.  (1894)  64  Fed.  165,  179;  see  also  Western  U.  T.  Co.  v.  State  (1912) 
31  Okla.  415,  121  Pac.  1069;  and  in  other  cases  according  to  the  relation 
between  the  gross  revenue  from  the  two  kinds  of  transportation  modified 
by  the  difference  in  the  expense  of  conducting  the  two  kinds  of  transpor- 
tation: St.  Louis  &  S.  F.  R.  Co.  v.  Hadley  (1909)  168  Fed.  317,  348-351; 
Trust  Co.  of  A.  v.  Chicago,  P.  &  St.  L.  Ry.  Co.  (1912)  199  Fed.  593,  604; 
Louisville  &  X.  R.  Co.  v.  Railroad  Comn.  of  Alabama  (1912)  196  Fed.  800, 
824;  In  re  Arkansas  R.  Rates  (1908)  163  Fed.  141,  142;  and  see  Western 
Ry.  of  Alabama  v.  Railroad  Comn.  (1912)  197  Fed.  954,  964  (with  which 
compare  197  Fed.  at  969);  In  re  Arkansas  Rate  Cases  (1911)  187  Fed. 
290,  318.  But,  as  already  pointed  out,  both  bases  of  apportionment  are 
manifestly  unsound.  Differences  in  operating  expenses  should  be  consid- 
ered in  determining  the  net  earnings  but  they  have  no  bearing  upon  the 
valuation  of  the  plant.  And  as  the  gross  revenue  depends  upon  the  rates, 
it  is  clearly  absurd  to  use  the  gross  revenue  as  a  basis  for  determining 
the  value  upon  which  rates  must  be  allowed  to  earn  a  revenue. 

76 As  was  said  in  Minnesota  Rate   Cases — Simpson  v.   Shepard    (1913) 


294  JUST  COMPENSATION. 

the  same  time  both  interstate  and  intrastate  freight  or 
both  interstate  and  intrastate  passengers,  it  seems  that 
the  apportionment  should  be  based  not  upon  car  mileage 
but  upon  ton  mileage  and  passenger  mileage."^"^ 

Having  found  the  total  value  within  the  state  upon 
which  the  company  is  entitled  to  earn  a  revenue  from 
both  interstate  and  intrastate  traffic,  this  total  value  may 
be  apportioned  between  freight  and  passenger  traffic  by 
finding  the  extent  to  which  the  facilities  can  be  said  to  be 
used  exclusively  for  freight  traffic  and  the  extent  to 
which  they  can  be  said  to  be  used  exclusively  for  passen- 
ger traffic  and  then  assigning  the  residuum  of  value  in  the 
same  proportion. 

Having  found  the  value  upon  which  the  company  is  en- 
titled to  earn  a  revenue  from  both  interstate  and  intra- 
state freight  traffic  within  the  limits  of  the  state,  that 
value  can  be  apportioned  between  interstate  and  intra- 
state traffic  according  to  the  extent  to  which  the  facilities 
are  used  in  each  of  those  two  classes  of  traffic,  as  shown 

230  U.  S.  352,  461,  33  Sup.  Ct.  729,  765,  57  L.  ed.  1511,  "When  rates  are  in 
controversy,  it  would  seem  to  be  necessary  to  find  a  basis  for  a  division  of 
the  total  value  of  the  property  independently  of  revenue,  and  this  must  be 
found  in  the  use  that  is  made  of  the  property.  That  is,  there  should  be 
assigned  to  each  business  that  proportion  of  the  total  value  of  the  property 
which  will  correspond  to  the  extent  of  its  employment  in  that  business. 
It  is  said  that  this  is  extremely  diflBcult;  in  particular,  because  of  the 
necessity  for  making  a  division  between  the  passenger  and  freight  business, 
and  the  obvious  lack  of  correspondence  between  ton-miles  and  passenger- 
miles.  It  does  not  appear,  however,  that  these  are  the  only  units  avail- 
able for  such  a  division;  and  it  would  seem  that,  after  assigning  to  the 
passenger  and  freight  departments  respectively,  the  property  exclusively 
used  in  each,  comparable  use-units  might  be  found  which  would  afford  the 
basis  for  a  reasonable  division  with  respect  to  property  used  in  common. 
It  is  suggested  that  other  methods  of  calculation  would  be  equally  favor- 
able to  the  state  rates,  but  this  we  cannot  assume." 

77  See  cases  in  note  49  in  Chapter  I,  supra.  Compare  Missouri,  K.  &  T. 
Ey.  Co.  V.  Love  (1910)  177  Fed.  493,  497,  where  the  court  thoroughly  mis- 
understands the  questions  of  value  and  apportionment  of  value. 


VALUE  OF  PROPERTY.  295 

by  the  ton  mileage.  So  also  we  can  find  the  value  assign- 
able to  intrastate  passenger  traffic  when  we  have  found 
the  relation  of  the  intrastate  passenger  mileage  to  the 
total  passenger  mileage  within  the  state.  By  adding  the 
result  found  as  to  intrastate  freight  traffic  to  the  result 
found  as  to  intrastate  passenger  traffic  we  will  have  the 
total  value  within  the  state  upon  which  the  railroad 
should  be  entitled  to  earn  a  revenue  upon  intrastate  traf- 
fic of  all  kinds. 

We  have  thus  what  appears  to  be  a  correct  method  of 
finding  the  value  upon  which  a  railroad  should  be  enti- 
tled to  earn  a  revenue  from  intrastate  traffic.  And  to  sup- 
port this  method  it  is  not  necessary  to  show  that  the  rail- 
road which  is  allowed  to  earn  a  sufficient  revenue  upon  its 
intrastate  traffic  as  a  whole  must  be  allowed  to  earn  a  pro- 
fit upon  both  the  intrastate  freight  traffic  and  the  intra- 
state passenger  traffic  separately. 

Particular  classes  of  traffic. 

166.  If  an  attempt  is  made  to  segregate  a  particular 
class  of  intrastate  traffic,  it  seems  clear  that  the  value  of 
the  property  used  is  the  value  of  the  property  which  is 
used  exclusively  for  that  transportation  plus  a  share  of 
the  value  of  the  property  used  for  it  in  common  with  other 
traffic,  and  that  that  share  must  be  based  upon  the  propor- 
tion which  the  use  of  the  common  facilities  for  that  pur- 
pose bears  to  the  use  of  those  common  facilities  for  all 
purposes. 

It  is  not  always  possible  to  show  the  proportion  of  the 
total  value  of  the  property  upon  which  a  particular  traffic 
is  entitled  to  earn  a  revenue."^^    Between  interstate  and 

78  See  Northern  P.  Ry.  Co.  v.  North  Dakota  (1910)  216  U.  S.  579,  581, 
30  Sup.  Ct.  423,  424,  54  L.  ed.  624;  Atlantic  C.  L.  R.  Co.  v.  Florida  (1906) 


296  JUST  COMPENSATION. 

intrastate  traffic  only  an  approximate  division  of  value 
can  be  made,  but  results  which  are  sufficiently  accurate 
for  practical  purposes  can  be  reached.  We  can  separate 
intrastate  freight  business  as  a  whole  from  intrastate 
passenger  business  as  a  whole.  The  result  will  be  only 
an  approximate  part  of  the  entire  value  of  the  property 
within  the  state.  Yet  we  can  reach  a  result  containing  a 
degree  of  accuracy  sufficient  for  practical  purposes  unless 
the  schedule  is  very  near  the  dividing  line  between  con- 
stitutionality and  unconstitutionality.  So  also  it  may  be 
possible  likewise  to  segregate  an  important  division  of 
the  railroad  or  under  some  circumstances  an  important 
class  of  the  traffic.  But  we  must  realize  that  the  more  we 
subdivide  subdivisions  of  the  business,  or  the  more  minute 
those  subdivisions  are,  the  less  and  less  reliable  will  be 
the  results  until  for  practical  purposes  they  are  useless.'^*' 
Moreover,  a  railroad  is  not  entitled  to  earn  the  same 
rate  of  return  upon  all  classes  of  business,  and  for  this 
reason  if  for  no  other  it  is  not  usually  important  for  us 
to  know  what  proportion  of  the  value  of  the  road  may  be 
said  to  be  devoted  to  that  portion  of  the  total  transporta- 
tion. 

Unprofitable  parts  of  the  property. 

167.  The  state  or  federal  government  may  also  establish 
rates  upon  portions  of  the  railroad  and  exclude  from  the 
reckoning  other  portions  of  the  road  which  are  conspicu- 

203  U.  S.  256,  260,  27  Sup.  Ct.  108,  109,  51  L.  ed.  174;  Northern  P.  Ry. 
Co.  V.  Lee  (1912)  199  Fed.  621,  632,  and  cases  there  cited;  Southern  P. 
Co.  V.  Campbell  (1911)   189  Fed.  182,  186.    Compare  note  99,  infra. 

79  See  Northern  P.  Ry.  Co.  v.  Lee  (1912)  199  Fed.  621,  632;  Smalley, 
Railroad  Rate  Control  (Publications  of  American  Economic  Assn.)  6,  7; 
Noyes,  American  Railroad  Rates,  28;  Reynolds,  Railway  Valuation — Is  It 
a  Panacea?  8  Col.  L.  Rev.  265,  270;  Leechburg  Borough  v.  Leechburg  W. 
W.  Co.   (1908)   219  Pa.  263,  68  Atl.  669. 


VALUE  OF  PROPERTY.  297 

ously  less  profitable,  such  as  extensions  ^°  or,  probably, 
terminals,  which  are  extremely  expensive  and  the  con- 
struction of  which,  in  view  of  the  probably  small  increases 
in  revenue  which  they  will  produce,  was  unwarranted.^^ 

80  Florida  E.  C.  Ry.  Co.  v.  United  States   (1912)   200  Fed.  797. 

81  See  cases  in  note  34,  supra.  In  Steenerson  v.  Great  N.  Ry.  Co.  (1897) 
69  Minn.  353,  383,  384,  72  N.  W.  713,  719,  the  court  said,  "In  this  case  the 
cost  of  reproducing  the  terminals  is,  as  we  have  seen,  one-third  of  the  cost 
of  reproducing  the  whole  railroad  system  within  the  state.  If  rates  were 
fixed  by  the  law  or  by  the  railway  company  for  the  terminals,  and  separate 
rates  for  the  rest  of  the  road,  so  that  the  public  would  have  a  right 
to  use  the  rest  of  the  road  without  using  the  terminals,  and  these  rates 
were  fixed  on  the  basis  of  requiring  the  terminals  to  produce  one-third  of 
the  net  earnings  within  this  state,  grass  would  soon  be  growing  on  the  ter- 
minals. The  public  would  soon  find  ways  by  which  to  avoid  incurring  the 
enormous  expense  of  using  the  terminals.  Rather  than  pay  three,  four 
or  five  dollars  for  riding  on  the  terminals,  the  passenger  coming  to  St. 
Paul  or  Minneapolis  would  leave  the  train  beyond  the  terminals,  and  ride 
to  his  destination  on  a  street  car  for  five  or  ten  cents.  Rather  than  incur 
an  expense  of  eight,  ten  or  twelve  dollars  for  hauling  a  car  of  freight  over 
the  terminals,  the  shipper  could  afi"ord  to  unload  the  car  beyond  the  ter- 
minals, and  haul  the  freight  to  its  destination  on  wagons  and  drays.  But 
he  would  not  have  to  do  this  very  long.  Some  one  would  soon  construct 
a  belt  line  or  a  system  of  switches  to  connect  him  with  other  railroad  tracks 
and  other  terminals,  over  which  his  car  would  be  hauled  to  its  destination 
for  the  ordinary  switching  charges  of  from  two  to  five  dollars  per  car.  If 
these  excessive  charges  for  the  use  of  terminals  could  not  be  thus  avoided, 
they  would  constitute  a  prohibitory  tariff',  which  would  prevent  a  large 
amount  of   public   traffic   from   entering   or   passing   through   these   cities. 

.  .  .  A  number  of  the  companies  owning  the  railroads  radiating  west, 
northwest,  and  southwest  from  Chicago  claim  that  the  cost  of  reproducing 
their  Chicago  terminals  would  be  as  great  as  the  cost  of  reproducing  all 
the  rest  of  their  systems  of  roads.  If  they  were  required  by  law  to  make 
a  separate  charge  to  each  patron  for  the  use  of  these  terminals,  and  an- 
other separate  charge  for  the  use  of  the  rest  of  the  road,  so  that  he  might 
avoid  using  the  terminals  if  he  could,  and  they  attempted  on  this  basis  to 
make  the  terminals  produce  one-half  the  net  earnings  of  the  whole  sys- 
tem, how  absurd  would  be  the  result.  .  .  .  It  is  clear  that  where  real 
estate  outside  of  the  business  center,  and  in  the  outlying  districts,  of  a  city, 
has  been  given  a  large  speculative  or  prospective  value,  it  cannot,  whether 
used  for  railroad  terminals  or  other  purposes,  be  made,  ordinarily,  to  pro- 
duce a  reasonable  annual  income  on  the  investment,  and  the  profits  which 
are  expected  from  such  investments  are  not  annual,  but  accumulated,  pro- 
fits, to  be  realized  by  future  increase  in  value."  See  also  69  Minn,  at  396, 
72  N.  W.  at  724. 


298  JUST  COMPENSATION^-. 

Smyth  V.  Ames  criticized. 

168.  In  conclusion  we  must  refer  to  a  passage  in  the 
opinion  of  the  court  in  Smyth  v.  Ames.^-  It  must  be  con- 
sidered because  it  has  been  quoted  with  approval  in  a 
number  of  cases,  more  especially  in  cases  in  the  lower 
courts,^^  although  in  view  of  the  present  condition  of  the 
law  this  portion  of  the  opinion  is  misleading  rather  than 
helpful.s^ 

The  court  said,  '  *  The  basis  of  all  calculations  as  to  the 
reasonableness  of  rates  to  be  charged  by  a  corporation 
maintaining  a  highway  under  legislative  sanction  must  be 
the  fair  value  of  the  property  used  by  it  for  the  conveni- 
ence of  the  public.  And  in  order  to  ascertain  that  value, 
the  original  cost  of  construction,  the  amount  expended  in 
permanent  improvements,  the  amount  and  market  value 
of  its  bonds  and  stock,  the  present  as  compared  with  the 
original  cost  of  construction,  the  probable  earning  capac- 
ity of  the  road  under  the  particular  rates  prescribed  by 
statute,  and  the  sum  required  to  meet  operating  expenses, 
are  all  matters  for  consideration,  and  are  to  be  given  such 
weight  as  may  be  just  and  right  in  each  case.  We  do  not 
say  that  there  may  not  be  other  matters  to  be  regarded  in 
estimating  the  value  of  the  property.  What  the  company 
is  entitled  to  ask  is  a  fair  return  upon  the  value  which  it 
employs  for  the  public  convenience.  On  the  other  hand, 
what  the  public  is  entitled  to  demand  is  that  no  more  be 
exacted  from  it  for  the  use  of  a  public  highway  than  the 
services  rendered  are  reasonably  worth. ' '  ^^ 

82  (1898)    169  U.  S.  466,  546,  18  Sup.  Ct.  418,  434,  42  L.  ed.  819. 

83  But  see  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913)  230  U.  S. 
352,  434,  435,  33  Sup.  Ct.  729,  754,  755,  57  L.  ed.  1511,  where  it  is  quoted 
with  approval. 

84  Whitten,  Valuation  of  Public  Service  Corporations,  p.  39. 

85  The   language  of  Harlan,  J.,   in  this  opinion  seems  to   echo   the   Ian- 


VALUE  OF  PROPERTY.  299 

But  the  later  cases  show  more  clearly  than  does  Smyth 
V.  Ames  that  in  finding  the  value  of  the  property  the  es- 
sential question  is  as  to  its  present  value,  and  a  considera- 
tion of  the  factors  mentioned  in  Smyth  v.  Ames  does  not 
furnish  a  satisfactory  method  of  finding  the  present  value. 

Even  assuming  that  "the  original  cost  of  construction" 
and  'Hhe  amount  expended  in  permanent  improvements" 
could  be  determined  accurately,  and  in  most  cases  they 
could  not  be  so  determined,^^  and  even  assuming  that  it 
were  proved  that  every  such  expenditure  had  been  made 
honestly  and  economically,  the  amounts  so  found  would 
not  necessarily  be  considered  by  the  court.^"  In  Smyth  v. 
Ames  those  expenditures  were  not  regarded  as  showing 
by  themselves  the  present  value  of  the  property;  and  even 
if  used  in  connection  with  other  factors  they  would  be 
more  apt  to  mislead  than  to  assist  in  reaching  accurate 
results. 

We  have  already  seen  that  the  amount  of  the  capitali- 
zation and  the  market  value  of  the  stock  and  bonds  should 
not  be  considered  in  determining  the  present  value  of  the 
property  for  the  purposes  of  rate  regulation.^^ 

It  is  self-evident  that  if  an  effort  is  made  to  find  the 
cost  of  reproducing  the  property  at  the  present  time  that 
fact  can  be  found  more  satisfactorily  by  a  direct  method 
than  by  finding  the  original  cost  of  construction  and  im- 

guage  of  the  dissenting  opinions  of  Harlan  and  Field,  JJ.,  in  Stone  v. 
Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  340,  341,  344,  6  Sup.  Ct.  334, 
389,  390,  1192,  29  L.  ed.  636. 

86  See  In  re  Advances  in  Rates— Eastern  Case  (1911)  20  I.  C.  C.  243, 
257,  258;  Robinson,  Railway  Passenger  Rates,  16  Yale  L.  Rev.  341,  369; 
Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  (1912)  196  Fed.  800,  820,  822,  and 
other  authorities  cited  in  note  21,  supra. 

87  See,  e.  g.,  San  Diego  L.  &  T.  Co.  v.  Jasper  (1903)  189  U.  S.  439,  442, 
23  Sup.  Ct.  571,  572,  47  L.  ed.  892;  Dow  v.  Beidelman  (1888)  125  U.  S.  680, 
690,  8  Sup.  Ct.  1028,  1030,  1031,  31  L.  ed.  841. 

88  See  sees.  156,  163,  supra. 


300  JUST  COMPENSATION. 

provements  and  comparing  those  costs  with  present 
costs.®^ 

''The  probable  earning  capacity  of  the  road  under  the 
particular  rates  prescribed  by  statute,  and  the  sum  re- 
quired to  meet  operating  expenses"  certainly  ought  to  be 
considered  in  rate  cases.  The  validity  of  the  schedule  de- 
pends upon  whether  the  net  earnings— the  gross  earnings 
minus  the  operating  expenses— constitute  an  appropriate 
percentage  of  the  value  of  the  property.  But  the  problem 
immediately  before  us  is  to  determine  the  amount  of  the 
principal  upon  which  the  income  is  to  be  based.  And  so, 
while  the  amount  of  the  gross  earnings  and  operating  ex- 
penses are  of  importance  as  showing  the  income  of  the 
road,  they  should  not  be  considered  by  the  court  in  these 
cases  in  determining  its  value.^*^ 

We  have  thus  noted  some  of  the  objections  to  the  oft- 
quoted  statement  of  the  court  in  Smyth  v.  Ames.  That 
statement  certainly  does  not  show  as  clear  an  understand- 
ing of  the  questions  involved  in  rate  cases  as  is  shown  in 
later  opinions  of  the  court. 

Rough  estimates  of  value. 

169.  In  some  cases  a  rough  estimate  of  the  value  of  the 
property  may  be  sufficient.^^    The  road  may  show  such  a 

89  See  Whitten,  Valuation  of  Public  Service  Corporations,  p.  39. 

5>0  See,  e.  g.,  Fenwick,  The  Test  of  a  Reasonable  Railroad  Rate,  8  Mich. 
L.  Rev.  445,  450. 

91  See,  for  example,  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S. 
362,  412,  413,  14  Sup.  Ct.  1047,  1060,  38  L.  ed.  1014,  where  the  court  held 
that  "a  general  averment  in  a  bill  that  a  tariff  as  established  is  unjust  and 
unreasonable,  is  supported  by  the  admitted  facts  that  the  road  cost  far 
more  than  the  amount  of  the  stock  and  bonds  outstanding;  that  such  stock 
and  bonds  represent  money  invested  in  its  construction;  that  there  has 
been  no  waste  or  mismanagement  in  the  construction  or  operation;  that 
supplies  and  labor  have  been  purchased  at  the  lowest  possible  price  con- 
sistent with  the  successful  operation  of  the  road ;  that  the  rates  voluntarily 


VALUE  OF  PROPERTY.  301 

history  of  wise,  honest,  economical  and  provident  finan- 
cial management  that  there  will  be  no  room  for  doubt 
that  the  present  value  of  the  property  exceeds  the  amount 
of  stock  and  bonds  outstanding,  and  such  a  minimum  val- 
uation based  on  its  history  and  the  amount  of  its  stock 
and  bonds  may  be  sufficient  for  the  purposes  of  the  com- 
pany. In  most  cases,  however,  it  will  be  necessary  to 
consider  the  elements  which  make  up  the  value  of  the 
property  more  carefully.*^  ^* 

Summary  as  to  value. 

170.  We  have  seen  that  the  value  of  the  property  which 
must  be  used  as  a  basis  from  which  to  determine  whether 
the  rates  established  by  the  government  so  restrict  the 
revenues  of  a  railroad  company  as  to  deprive  the  com- 
pany of  its  property  without  just  compensation  is  the 

fixed  by  the  company  have  been  for  ten  years  steadily  decreasing  until  the 
aggregate  decrease  has  been  more  than  fifty  per  cent;  that  under  the  rates 
thus  voluntarily  established,  the  stock,  which  represents  two-fifths  of  the 
value,  has  never  received  anything  in  the  way  of  dividends,  and  that  for 
the  last  three  years  the  earnings  above  operating  expenses  have  been  insuf- 
ficient to  pay  the  interest  on  the  bonded  debt,  and  that  the  proposed  tariff, 
as  enforced,  will  so  diminish  the  earnings  that  they  will  not  be  able  to  pay 
one-half  the  interest  on  the  bonded  debt  above  the  operating  expenses;  and 
that  such  an  averment  so  supported  will,  in  the  absence  of  any  satisfac- 
tory showing  to  the  contrary,  sustain  a  finding  that  the  proposed  tariff  is 
unjust  and  unreasonable,  and  a  decree  reversing  it  being  put  in  force." 
And  see  cases  immediately  following  Reagan  v.  Farmers'  L.  &  T.  Co.  in 
the  same  volume;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S. 
578,  591,  592,  17  Sup.  Ct.  198,  203,  41  L.  ed.  560;  Minnesota  Rate  Cases- 
Simpson  V.  Shepard  (1913)  230  U.  S.  352,  472,  33  Sup.  Ct.  729,  769,  57  L. 
ed.  1511;  Missouri  Rate  Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913) 
230  U.  S.  474,  507,  33  Sup.  Ct.  975,  983,  57  L.  ed.  1571.  In  Louisville  & 
N.  R.  Co.  V.  Railroad  Comn.  of  Alabama  (1912)  196  Fed.  800,  819,  the 
receipts  from  the  intrastate  business  were  not  sufficient  to  meet  all  the 
expenses  which  were  properly  chargeable  against  that  business.  See  also 
cases  in  note  141  and  sec.  186,  infra. 

91a  See,  e.  g.,  Missouri  Rate  Cases — Knott  v.  Chicago,  B.  &  Q.  R.  Co. 
(1913)  230  U.  S.  474,  33  Sup.  Ct.  975,  57  L.  ed.  1571. 


302  JUST  CO^tPENSATION. 

amount  which  it  would  cost  to  produce  at  the  present  time 
property  of  equal  efficiency,  deducting  from  the  cost  of 
such  a  plant  new  an  amount  to  compensate  for  the  depre- 
ciation which  has  taken  place.  To  the  cost  of  reproduc- 
ing such  tangible  property  must  be  added  the  cost  of  pro- 
ducing at  the  present  time  a  corporation  adapted  to  do 
the  work  and  the  cost  of  building  up  at  the  present  time 
an  organization  and  a  clientage  such  as  the  present  cor- 
poration possesses,  allowing  nothing  for  that  part  of  the 
clientage  which  is  the  result  of  the  possession  of  a  partial 
or  complete  monopoly  by  the  corporation.  But,  on  the 
other  hand,  we  have  seen  that  the  earning  capacity  of  the 
corporation  and  the  market  value  of  the  stock  and  bonds 
have  no  bearing  upon  the  valuation  of  the  property  for 
the  purposes  of  rate  regulation. 

We  have  also  considered  the  use  of  the  same  equipment 
for  more  than  one  class  of  transportation— for  example, 
for  both  interstate  and  intrastate  transportation,— and 
have  considered  principles  of  apportionment  of  valuation 
which  appear  to  be  sound. 

OPERATING  EXPENSES. 

General  principles. 

171.  Having  found  the  value  of  the  property,  the  rate 
of  return  upon  that  property  depends  upon  the  amount  of 
the  earnings  which  remain  after  we  have  deducted  from 
the  gross  earnings  all  the  necessary  current  expenditures 
which  do  not  increase  the  total  value  of  the  property  and 
which  are  not  distributions  of  earnings  among  investors. 
The  necessary  current  expenses  include,  of  course,  the 
cost  of  conducting  transportation,®^  the  cost  of  maintain- 

92  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  (1900)  176  U.  S.  167,  177, 
178,  20  Sup.  Ct.  336,  340,  44  L.  ed.  417;  In  re  Arkansas  Rate  Cases  (1911) 


OPERATING  EXPENSES.  303 

ing  the  value  of  the  property  unimpaired,^^  and  other 
items,  such  as  current  taxes ;  ^^  but  it  goes  without  saying 
that  payments  which  are  extravagant  or  dishonest, 
whether  they  are  for  salaries  ®^  or  for  any  other  purpose,^® 
may  not  properly  come  under  this  head. 

Transportation. 

172.  The  cost  of  conducting  transportation  includes 
not  only  the  cost  of  such  important  items  as  wages  and 
fuel  but  also  such  minor  expenses  as  those  which  are  nec- 

187  Fed.  290,  334;  Northern  P.  Ry.  Co.  v.  Keyes  (1898)  91  Fed.  47,  53; 
Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed.  866,  879,  1  L.  R.  A.  744, 
752;  Long  Branch  Comn.  v.  Tintern  M.  W.  Co.  (1905)  70  N.  J.  Eq.  71,  94, 
62  Atl.  474,  482. 

93Knoxville  v.  Knoxville  W.  Co.  (1911)  212  U.  S.  1,  13,  29  Sup.  Ct,  148, 
152,  53  L.  ed.  371;  In  re  Arkansas  Rate  Cases  (1911)  187  Fed.  290,  334; 
Cedar  Rapids  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  444,  120  N. 
W.  966,  972  (overruling  Cedar  Rapids  W.  Co.  v.  Cedar  Rapids  (1902)  118 
Iowa,  234,  263,  91  N.  W.  1081,  1091)  ;  Spring  Valley  W.  Co.  v.  San  Fran- 
cisco (1908)  165  Fed.  667,  703;  Long  Branch  Comn.  v.  Tintern  M.  W.  Co. 
(1905)  70  N.  J.  Eq.  71,  94,  62  Atl.  474,  482;  Contra  Costa  W.  Co.  v.  Oak- 
land (1904)  165  Fed.  518,  532;  Northern  P.  Ry.  Co.  v.  Keyes  (1898)  91 
Fed.  47,  53;  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed.  866,  879,  1 
L.  R.  A.  744,  752;  and  see  cases  cited  in  Wyman,  Public  Service  Corpora- 
tions, pp.  1034,  1037;  Whitten,  Valuation  of  Public  Service  Corporations, 
chap.  20.  Compare  Home  T.  Co.  v.  Carthage  (1911)  235  Mo.  644,  655,  656, 
139  S.  W.  547,  552;  Illinois  C.  R.  Co.  v.  Interstate  Com.  Comn.  (1907) 
206  U.  S.  441,  462,  27  Sup.  Ct.  700,  707,  51  L.  ed.  1128;  Long  Branch 
Comn.  V.  Tintern  M.  W.  Co.  (1905)  70  N.  J.  Eq.  71,  62  Atl.  474;  Wyman, 
Public  Service  Corporations,  p.  1036. 

94  Cumberland  T.  &  T.  Co.  v.  Memphis  (1908)  183  Fed.  875,  877;  Contra 
Costa  W.  Co.  V.  Oakland  (1904)  165  Fed.  518,  532;  Southern  Pac.  Co.  v. 
Board  of  R.  Comrs.   (1896)   78  Fed.  236,  272. 

95  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman  (1892)  143  U.  S.  339,  345,  12  Sup. 
Ct.  400,  402,  30  L.  ed.  176;  Brooklyn  H.  R.  Co.  v.  Brooklyn  C.  R.  Co. 
(1908)  109  N.  Y.  Supp.  31,  35.  And  see  Reagan  v.  Farmers'  L.  &  T.  Co. 
(1894)  154  U.  S.  362,  412,  14  Sup.  Ct.  1047,  1059,  38  L.  ed.  1014;  Missouri 
P.  Ry.  Co.  v.  Smith  (1895)  60  Ark.  221,  244,  29  S.  W.  752,  755. 

96Pannell  v.  Louisville  T.  W.  Co.  (1902)  113  Ky.  630,  68  S.  W.  662; 
Missouri,  K.  &  T.  R.  Co.  v.  Interstate  Com.  Comn.  (1908)  164  Fed.  645, 
648.     See  also  Reagan  v.  Farmers'  L.  &,  T.  Co.   (1894)    154  U.  S.  362,  412, 


304  JUST  COilPENSATION. 

essary  for  the  securing  of  business.^"  And  if  losses  caus- 
ed by  the  negligence  of  employees  have  occurred  in  spite 
of  proper  management  of  the  railroad,  such  losses  may  be 
included  in  the  operating  expenses.^^ 

The  courts  recognize  the  fact  that  local  transportation 
costs  more  per  mile  than  through  transportation  and  that, 
while  the  exact  difference  may  never  be  ascertainable, 
working  estimates  of  that  difference  can  be  formed.^^  So 
also  the  courts  have  recognized  the  fact  that  where  ship- 

14  Sup.  Ct.  1047,  1059,  1060,  38  L.  ed.  1014;  Missouri  P.  Ry.  Co.  v.  Smith 
(1895)  60  Axk.  221,  244,  29  S.  W.  752,  755.  Compare  In  re  Arkansas  R. 
Rates    (1909)    168  Fed.  720,  729,  730. 

97  See  In  re  Arkansas  Rate  Cases  (1911)  187  Fed.  290,  316.  Compare 
United  States  v.  Delaware,  L.  &  W.  R.  Co.  (1907)  152  Fed.  269;  Pannell 
V.  Louisville  T.  W.  Co.   (1902)   113  Ky.  630,  68  S.  W.  662. 

98  In  re  Arkansas  Rate  Cases   (1911)    187  Fed.  290,  306. 

99  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U.  S.  257,  262, 
22  Sup.  Ct.  900,  902,  903,  46  L.  ed.  1151;  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Tompkins  (1900)  176  U.  S.  167,  177,  178,  20  Sup.  Ct.  336,  340,  44  L.  ed. 
417;  In  re  Arkansas  Rate  Cases  (1911)  187  Fed.  290,  334;  Shepard  v. 
Northern  P.  Ry.  Co.  (1911)  184  Fed.  765,  812,  and  cases  cited  on  p.  815, 
with  which  compare  Minnesota  Rate  Cases,  infra.  As  was  said  in  North- 
ern P.  Ry.  Co.  V.  Keyes  (1898)  91  Fed.  47,  53,  "The  operating  expenses  of 
a  railroad  consist  of  two  principal  items:  (1)  Cost  of  maintenance  of 
plant;  (2)  cost  of  conducting  transportation.  The  former  item  is  con- 
stant, and  can  justly  be  divided  between  the  diiferent  kinds  of  traffic  in 
proportion  to  their  volume.  As  to  the  second  item,  however,  such  a  divis- 
ion cannot  properly  be  made;  for  it  is  agreed,  by  all  who  have  had  oc- 
casion to  consider  the  subject,  railroad  commissions  as  well  as  railroad 
officials,  that  the  cost  of  conducting  transportation  is,  relative  to  income, 
much  higher  for  local  business  than  for  the  general  business  of  a  road.  The 
causes  of  this  added  cost  are  chiefly  three :  ( 1 )  The  shortness  of  the  haul ; 
(2)  the  lightness  of  the  train  loads;  (3)  expense  of  billing  and  handling 
the  traffic."  Compare  note  79,  supra. — In  the  Minnesota  Rate  Cases — 
Simpson  v.  Shepard  (1913)  230  U.  S.  352,  465,  466,  469,  33  Sup.  Ct.  729, 
766,  767,  768,  57  L.  ed.  1511,  the  court  discusses  the  question  and  decides  that 
the  difference  in  cost  of  conducting  the  two  classes  of  transportation  was 
not  shown  with  such  accuracy  as  to  warrant  the  court  in  declaring  the  state 
legislation  unconstitutional.  See  also  discussion  in  Missouri  Rate  Cases — 
Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913)  230  U.  S.  474,  504,  505,  507,  30 
Sup.  Ct.  975,  982,  983,  57  L.  ed.  1571;  Allen  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
(1913)  230  U.  S.  553,  558,  559,  33  Sup.  Ct.  1030,  1032,  1033,  57  L.  ed.  1625; 
Wood  v.  Vandalia  R.  Co.  (1913)  231  U.  S.  1,  32  Sup.  Ct.  7,  58  L.  ed. 


OPERATING  EXPENSES.  305 

ments  are  few  and  small  they  cost  more  per  ton  mile  than 
where  they  are  many  and  large.^*^^ 

Maintenance. 

173.  The  cost  of  maintenance  embraces  whatever  cur- 
rent expenditures  are  necessary  in  order  to  maintain  the 
total  value  of  the  property  unimpaired;  ^^^  but  it  does  not 
embrace  expenditures  which  increase  the  value  of  that 
property.  1^2    It  does  not  seem  necessary  that  the  money 

100  Northern  P.  Ry.  Co.  v.  Keyes  (1898)  91  Fed.  47.— On  relative  cost 
of  freight  and  passenger  traffic  see  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67 
W.  Va.  129,  197,  67  S.  E.  613,  642;  Pennsylvania  R.  Co.  v.  Philadelphia 
County  (1908)   220  Pa.  100,  68  Atl.  676,  15  L.  R.  A.  N.  S.  108. 

101  See  cases  in  note  93,  supra. 

102  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129,  193,  67  S.  E.  613, 
641;  Erie  v.  Erie  G.  &  M.  Co.  (1908)  78  Kan.  348,  354,  97  Pac.  468,  470; 
and  see  Miller,  Some  Questions  in  Connection  with  State  Rate  Regulation, 
8  Mich.  L.  Rev.  108,  110,  111.  Tlie  Interstate  Commerce  Act  (Act  June  29, 
1906,  34  U.  S.  Stat,  at  L.  584,  593,  Fed.  Stats.  An.,  Supp.,  1909,  254,  272) 
requires  carriers  subject  to  it  to  report  separately  the  amount  spent  for 
improvements  and  the  amount  spent  for  operating  expenses.  In  Illinois  C. 
R.  Co.  V.  Interstate  Com.  Comn.  (1907)  206  U.  S.  441,  462,  27  Sup.  Ct.  700, 
707,  51  L.  ed.  1128,  the  court  said,  "It  would  seem  as  if  expenditures  for 
additions  to  construction  and  equipment,  as  expenditures  for  original  con- 
struction and  equipment,  should  be  reimbursed  by  all  of  the  traffic  they  ac- 
commodate during  the  period  of  their  duration,  and  that  improvements  that 
will  last  many  years  should  not  be  charged  wholly  against  the  revenue  of 
a  single  year." — Where  a  wooden  bridge  is  replaced  by  a  steel  one,  or  a 
steel  bridge  by  a  stone  bridge,  or  a  track  of  eighty  pound  rails  by  a  track 
of  hundred  pound  rails,  should  the  additional  cost  be  included  in  the  or- 
dinary maintenance  expenses  or  should  it  be  given  a  separate  classification? 
It  seems  that  if  earnings  are  spent  in  increasing  the  value  of  the  road, 
which  increased  value  may  be  used  as  a  basis  for  estimating  the  constitu- 
tionality of  rates  in  the  future,  that  fact  should  be  stated,  and  while  that 
part  of  the  expenditures  which  a  replacement  would  cost  should  be  in- 
cluded in  the  operating  expenditures,  the  increase  in  cost  should  be  separ- 
ated from  ordinary  expense  of  maintenance.  See  Hearings  of  Senate  Com- 
mittee on  Interstate  Commerce,  May,  1905,  vol.  IV,  pp.  3085,  3111.  In 
opposition  to  this  view  may  possibly  be  cited  Metropolitan  T.  Co.  v. 
Houston  &  T.  C.  R.  Co.  (1898)  90  Fed.  683,  which  decides  that  under  the 
circumstances  there  set  forth  betterments  can  be  paid  for  from  the  gross 
earnings,    although    it   is   doubtful   whether   the    case    decides   more   than 


306  JUST  COMPENSATION. 

should  be  spent  only  for  renewals.  If,  for  instance,  upon 
a  new  railroad  a  sum  equivalent  to  the  depreciation  in 
property  which  does  not  yet  require  renewal  were  spent 
for  betterments  or  extensions,  such  an  expenditure  which 
simply  maintained  the  total  value  of  the  property  at  the 
original  amount  should,  it  seems,  be  considered  legitimate 
expense  of  maintenance,^"^  although  in  the  case  of  an  older 
railroad  where  necessary  renewals  called  for  the  full 
amount  of  the  depreciation  fund  an  expenditure  for  bet- 
terments, even  though  required  by  the  increasing  demands 
for  transportation,  could  not  properly  be  considered  an 
expense  for  maintenance.^"^  So  also  it  seems  that  the 
company  must  be  allowed  to  replace  from  operating  ex- 
penditures whatever  losses  are  caused  by  obsolescence  as 
well  as  those  which  are  caused  by  wear  and  tear  or  de- 
cay.^"'^  Whatever  maintains  the  total  value  of  the  prop- 
erty should  be  regarded  as  legitimate  expense  of  mainte- 

this.  Southern  P.  Co.  v.  Board  of  R.  Comrs.  (1896)  78  Fed.  236,  decides  that 
betterments  may  be  included  in  the  operating  expenses,  citing  Reagan  v. 
Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed. 
1014,  and  earlier  cases.  In  Reagan  v.  Farmers'  L.  &  T.  Co.,  while  the  court 
seems  to  decide  as  stated,  it  barely  touches  upon  the  question,  for  other 
facts  control  the  case,  and,  moreover,  many  of  the  expenditures  for  so- 
called  betterments  were  merely  for  renewals.  None  of  the  other  cases  cited 
in  the  Southern  Pacific  case  involve  railroad  rates,  and  in  some  of  them 
the  question  of  betterments  does  not  arise  in  any  way.  In  Reagan  v. 
Farmers'  L.  &  T.  Co.  the  court  carefully  points  out  that  none  of  the  ex- 
penditures for  so-called  betterments  were  for  extensions.  Part  of  the 
amount  so  expended  was  very  properly  included  in  the  operating  expenses, 
although  it  is  not  clear  that  all  of  the  expenditure  should  have  been  so 
classified. 

103  See  Hearings  of  Senate  Committee  on  Interstate  Commerce,  April, 
1905,  vol.  II,  p.  931;  Whitten,  Valuation  of  Public  Service  Corporations, 
chap.  20;  and  also  Railroad  Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.  (1909) 
212  U.  S.  414,  29  Sup.  Ct.  357,  53  L.  ed.  577,  referred  to  at  end  of  note  16, 
supra. 

104  See  Wyman,  Public  Service  Corporations,  sec.  1164. 

105  See  Whitten,  Valuation  of  Public  Service  Corporations,  pp.  403  et  seq., 
383,  where  the  question  is  discussed. 


OPERATING  EXPENSES.  307 

nance;  whatever  increases  that  value  should  be  accounted 
for  under  another  head. 

But  expenditure  on  account  of  past  losses  cannot  be  in- 
cluded in  the  cost  of  maintenance.  If  the  property  has 
been  allowed  to  depreciate  the  company  cannot  charge 
against  the  present  year  expenditures  on  account  of  losses 
which  accrued  in  years  gone  by.  Past  depreciation  can- 
not be  made  good  at  the  expense  of  present  patrons.^ °^ 

Pa3mients  to  stockholders  and  bondholders. 

174.  Payments  to  stockholders  ^°^  and  to  bondhold- 
ers/"^ however,  are  not  part  of  the  current  expenses,  but 

loepuget  S.  E.  Ey.  v.  Railroad  Comn.  (1911)  65  Wash.  75,  82,  117  Pac. 
739,  743.  See  also  Southern  Pac.  Co.  v.  Board  of  R.  Comrs.  (1896)  78 
Fed.  236,  272.  Compare  Hearings  of  Senate  Committee  on  Interstate  Com- 
merce, May,  1905,  vol.  Ill,  p.  2149. 

107  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U.  S.  257,  266, 
22  Sup.  Ct.  900,  904,  46  L.  ed.  1151,  affirming  State  v.  Minneapolis  &  St. 
L.  R.  Co.   (1900)   80  Minn.  191,  200,  83  N.  W.  60,  64. 

108  In  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U.  S.  257, 
266,  22  Sup.  Ct.  900,  904,  46  L.  ed.  1151,  the  court  speaks  of  the  propriety 
of  including  payments  to  bondholders  as  "at  least  doubtful."  See  also 
Miller,  Some  Questions  in  Connection  with  State  Rate  Regulation,  8  Mich. 
L.  Rev.  108,  112.  Compare  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  ( 1888)  35  Fed. 
866,  879,  1  L.  R.  A.  744,  752;  Wallace  v.  Arkansas  C.  R.  Co.  (1902)  118 
Fed.  422;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Smith  (1901)  110  Fed.  473.— A 
company  iinanced  only  by  stock  subscriptions  would  have  to  be  satisfied 
with  rates  based  upon  present  conditions.  The  value  of  its  property  would 
be  merely  the  cost  of  replacement.  What  if  the  road  were  built  entirely 
from  money  received  from  holders  of  bonds,  if  it  cost  more  than  it  would 
cost  to  replace  it,  and  if  the  rate  of  interest  named  in  the  bonds  were 
higher  than  the  current  rate?  Should  such  a  road  be  entitled  to  charge 
more  for  transportation  than  might  be  charged  by  a  road  built  entirely  by 
the  stockholders?  Such  cases  are  not  imaginary.  In  Lincoln  G.  &  E.  L. 
Co.  v.  Lincoln  (1909)  182  Fed.  926,  929,  the  bonded  indebtedness  alone 
greatly  exceeded  the  cost  of  the  plant.  See  also  19  Industrial  Commission 
Reports,  403-407;  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  11,  29 
Sup.  Ct.  148,  151,  53  L.  ed.  371.  And  in  Steenerson  v.  Great  N.  Ry.  Co. 
(1897)  69  Minn.  353,  385-389,  72  N.  W.  713,  719-721,  the  rate  of  interest 
on  the  bonds  was  considerably  higher  than  the  rate  at  which  money  could  be 
borrowed  in  1897. 


308  JUST  COMPENSATION. 

are  both  returns  from  investment.  In  finding  the  value 
of  the  railroad  property  the  court  does  not  treat  the  in- 
vestment of  bondholders  as  a  separate  item,  like  the  in- 
vestment of  a  lessor.  It  is,  instead,  part  of  the  property 
of  the  company,  part  of  the  principal  sum  upon  which  the 
company  is  entitled  to  earn  a  revenue.  For  this  reason, 
payments  to  bondholders  cannot  be  regarded  as  operating 
expenses  like  payments  to  lessors,  but  they  must  be  placed 
in  the  same  class  as  payments  to  stockholders,  as  coming 
from  the  net  revenue  upon  the  entire  value  of  the  prop- 
erty. 

NET  EARNINGS. 

What  earnings  are  to  be  considered. 

175.  The  return  which  the  carrier  receives  from  the  use 
of  its  property  is  shown  by  the  amount  of  the  net  earnings 
and  not  by  the  amount  of  the  gross  earnings.^  "^  The  de- 
preciation in  the  value  of  the  property,  whether  from  wear 
and  tear,  obsolescence  or  any  analogous  cause,  should  be 
deducted  from  the  amount  of  the  gross  earnings  in  com- 
puting the  net  returns  from  the  property;  ^^°  and  upon  the 
same  principle  it  seems  clear  that  appreciation  in  the 
value  of  the  property  should  be  added  to  the  revenue  re- 
ceived from  its  patrons. ^^^ 

In  passing  upon  the  constitutionality  of  regulations  the 
returns  from  interstate  traffic  are  separated  from  the  re- 

109  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  (1900)  176  U.  S.  167,  20 
Sup.  Ct.  336,  44  L.  ed.  417.  And  see  Wood  v.  Vandalia  R.  Co.  (1913) 
231  U.  S.  1,  34  Sup.  Ct.  7,  58  L.  ed.;  Morgan's  L.  &  T.  R.  Co.  v.  Railroad 
Comn.  of  La.  (1911)  127  La.  636,  53  So.  890;  Chicago,  M.  &  St.  P.  Ry.  Co. 
V.  Smith  (1901)    110  Fed.  473;  and  sec.  171,  supra. 

110  See  sec.  171,  supra. 

111  See  authorities  cited  in  note  102,  supra,  Whittcn,  Valuation  of  Public 
Service  Corporations,  sees.  122,  124;  Steenerson  v.  Great  N.  Ry.  Co.  (1897) 
69  Minn.  353,  381  et  seq.,  72  N.  W.  713,  718  et  seq. 


NET  EARNINGS.  309 

turns  from  intrastate  traffic.  A  state  cannot  require  a 
railroad  to  carry  local  traffic  at  inadequate  rates  upon  the 
ground  that  the  railroad  is  compensated  by  the  profitable- 
ness of  its  interstate  traffic  ;^^2  and,  conversely,  it  must  fol- 
low that  the  federal  government  cannot  require  a  rail- 
road to  carry  interstate  traffic  at  inadequate  rates  upon 
the  ground  that  it  is  compensated  by  the  profitableness 
of  its  local  traffic. 

Proving  amount  of  earnings. 

176.  In  estimating  the  probable  earnings  of  the  com- 
pany under  the  rates  considered,  the  courts  will  not  as- 
sume as  a  matter  of  law  that  a  reduction  of  rates  will  di- 
minish the  income  of  the  company,  but  such  an  effect  must 
be  proved.^  ^^ 

Rates  fair  to  public. 

177.  A  railroad  must  transport  at  rates  which  are  rea- 
sonable to  its  patrons.^  ^^    While  the  amount  of  business 

112  See  note  48  in  Chap.  1,  supra. 

113  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman  (1892)  143  U.  S.  339,  12  Sup. 
Ct.  400,  30  L.  ed.  176;  Chicago  U.  T.  Co.  v.  Chicago  (1902)  199  111.  484, 
547,  65  N.  E.  451,  470,  59  L.  R.  A.  631,  653;  Winchester  &  L.  T.  R.  Co.  v. 
Croxton  (1896)  98  Ky.  739,  34  S.  W.  518,  33  L.  R.  A.  177.  See  also 
Wood  V.  Vandalia  R.  Co.  (1913)  231  U.  S.  1,  34  Sup.  Ct.  7,  58  L.  ed.;  Rail- 
road Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414,  426, 
427,  29  Sup.  Ct.  357,  362,  363,  53  L.  ed.  577;  Willcox  v.  Consolidated  G. 
Co.  (1909)  212  U.  S.  19,  51,  29  Sup.  Ct.  192,  199,  53  L.  ed.  382;  Atlantic 
C.  L.  R.  Co.  V.  Florida  (1906)  203  U.  S.  256,  260,  27  Sup.  Ct,  108,  109,  51 
L.  ed.  174;  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  404,  14 
Sup.  Ct.  1047,  1057,  38  L.  ed.  1014;  State  v.  Adams  Ex.  Co.  (1909)  85  Neb. 
25,  32,  122  N.  W.  691,  694;  Central  of  Ga.  Ry.  Co.  v.  McLendon  (1907) 
157  Fed.  961,  976;  Smalley,  Railroad  Rate  Control  (Publications  of  Ameri- 
can Economic  Assn.)  6,  7.  Compare  Seaboard  A.  L.  Ry.  Co.  v.  Railroad 
Comn.  of  Alabama   (1907)    155  Fed.  792. 

114  "It  would  not  ...  be  claimed  that  the  railroads  could  in  all  cases 
be  allowed  to  charge  grossly  exorbitant  rates  as  compared  with  rates  paid 
upon  other  roads,   in  order  to  pay  dividends  to  stockholders.     Each  case 


310  JUST  COIklPENSATION. 

done  by  the  road  may  affect  the  rates  charged/ ^'^  a  road 
having  but  little  traffic  may  not  charge  extortionate  rates 
in  order  to  earn  profits  on  that  traffic;  ^^^  and  while  the 
carrier  is  entitled  to  fair  compensation,  so  also  the  public 
is  entitled  to  carriage  at  rates  which  are  fair  to  it,  and  the 
state  or  federal  government  in  making  regulations  may 
very  properly  consider  the  value  of  the  services  to  the 
public.^^"^ 

Rates  fair  to  railroad. 

178.  But,  if  a  railroad  may  do  so  consistently  with  the 

must  be  determined  by  its  own  considerations,  and  while  the  rule  stated 
in  Smyth  v.  Ames  [see  sec.  168,  supra]  is  undoubtedly  sound  as  a  gen- 
eral proposition  that  the  railways  are  entitled  to  a  fair  return  upon 
the  capital  invested  [see  sec.  168,  supra]  it  might  not  justify  them  in 
charging  an  exorbitant  mileage  in  order  to  pay  operating  expenses,  if  the 
conditions  of  the  country  did  not  permit  it:"  Minneapolis  &  St.  L.  R.  Co. 
V.  Minnesota  (1902)  186  U.  S.  257,  268,  22  Sup.  Ct.  900,  905,  46  L.  ed. 
1151.  See  also  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S. 
578,  596,  597,  17  Sup.  Ct.  198,  205,  41  L.  ed.  560;  Reagan  v.  Farmers'  L. 
&  T.  Co.  (1894)  154  U.  S.  362,  412,  14  Sup.  Ct.  1047,  1059,  1060,  38  L.  ed. 
1014;  Alabama  &  V.  Ry.  Co.  v.  Mississippi  R.  Comn.  (1906)  203  U.  S.  496, 
501,  27  Sup.  Ct.  163,  165,  51  L.  ed.  289;  Puget  S.  E.  Ry,  v.  Railroad  Comn. 
(1911)  65  Wash.  75,  87,  117  Pac.  739,  744;  Missouri,  K.  &  T.  R.  Co.  v. 
Interstate  Com.  Comn.  (1908)  164  Fed.  645,  648;  Brunswick  &  T.  W.  Dist. 
V.  Maine  W.  Co.  (1904)  99  Me.  371,  380,  59  Atl.  537,  540;  Interstate  Com. 
Comn.  V.  Louisville  &  N.  R.  Co.  (1902)  118  Fed.  613;  Bruce,  State  Regu- 
lation of  Railroad  Rates  and  Charges,  62  Cent.  L.  J.  458,  460;  Smalley, 
Railroad  Rate  Control  (Publications  of  American  Economic  Assn.)  94,  97; 
Washington  S.  Ry.  Co.  v.  Commonwealth  (1911)  112  Va.  515,  71  S.  E. 
539;  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129,  190,  67  S.  E. 
613,  639. 

115  Smyth  v.  Ames  (1898)  169  U.  S.  466,  540,  18  Sup.  Ct.  418,  431,  42 
L.  ed.  819. 

116  See  note  34,  supra;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164 
U.  S.  578,  17  Sup.  Ct.  198,  41  L.  ed.  560;  and  also  Reagan  v.  Farmers'  L. 
&  T.  Co.  (1894)   154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed.  1014. 

iiT  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1902)  186  U.  S.  257,  22 
Sup.  Ct.  900,  46  L.  ed.  1151.  See  also  Smyth  v.  Ames  (1898)  169  U.  S. 
466,  18  Sup.  Ct.  418,  42  L.  ed.  819;  and  cases  cited  in  note  114,  supra. 
But  compare  authorities  cited  at  end  of  note  164,  infra. 


NET  EARNINGS.  311 

above  rule,  it  is  entitled  to  receive  a  profit  from  the  use 
of  its  property.  The  United  States  Supreme  Court  has 
not  stated  definitely  just  what  rate  of  profit  must  be  al- 
lowed,^ ^^  and  there  is  a  wide  range  in  the  decisions  of  the 
state  and  the  lower  federal  courts. ^^'^  It  is  possible,  how- 
ever, to  state  the  principles  which  should  govern  the 
courts  in  deciding  whether  or  not  the  revenues  of  a  rail- 
road are  reduced  to  an  unconstitutional  extent. 

Constitutional  rate  of  return. 

179.  As  a  general  rule  ^^^  a  governmental  regulation 
should  be  held  unconstitutional  if  under  it  the  carrier  is 
not  allowed  to  receive  from  all  of  its  transportation  which 
is  subject  to  that  government,  taken  as  an  entirety,^ ^^ 
whatever  rate  of  return  it  can  be  shown  would  unques- 
tionably be  received  at  the  present  time  in  other  enter- 
prises involving  the  same  business  hazards. ^^-    Of  course, 

118  See  sec.  180,  infra. 

119  See  sec.  181,  infra. 

120  See,  however,  sec.  177,  supra. 

121  See  sees.  184-187,  infra. 

i22WiIlcox  V.  Consolidated  G.  Co.  (1009)  212  U.  S.  19,  48,  29  Sup.  Ct. 
192,  198,  53  L.  ed.  382;  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29 
Okla.  429,  459,  118  Pac.  354,  366,  38  L.  R.  A.  N.  S.  1209;  Puget  S.  E.  Ry. 
V.  Railroad  Comn.  (1911)  65  Wash.  75,  97,  117  Pac.  739,  749;  Des  Moines 
W.  Co.  V.  Des  Moines  (1911)  192  Fed.  193,  199;  Central  of  Ga.  Ry.  Co.  v. 
Railroad  Comn.  of  Alabama  (1908)  161  Fed.  925,  993;  Trustees  v.  Sara- 
toga G.,  E.  L.,  H.  &  P.  Co.  (1907)  122  N.  Y.  App.  Div.  203,  220,  107  N.  Y. 
Supp.  341,  354;  Consolidated  G.  Co.  v.  New  York  (1907)  157  Fed.  849,  871; 
San  Diego  W.  Co.  v.  San  Diego  (1897)  118  Cal.  556,  570,  50  Pac.  633,  637, 
38  L.  R.  A.  460;  Whitten,  Valuation  of  Public  Service  Corporations,  p.  659; 
Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129,  189,  67  S.  E.  613,  639. 
Compare  People  v.  Public  Service  Comn.  (1912)  153  N.  Y.  App.  Div.  129, 
138  N.  Y.  Supp.  434;  Fenwick,  The  Judicial  Test  of  a  Reasonable  Railroad 
Rate,  8  Mich.  L.  Rev.  445,  447,  448 ;  note  123,  infra.  On  this  subject  as  on 
so  many  others  the  opinion  of  the  majority  of  the  court  in  Pennsylvania 
R.  Co.  V.  Philadelphia  County  (1908)  220  Pa.  100,  115,  08  Atl.  676,  679,  15 
L.  R.  A.  N.  S.  108,  117,  is  clearly  wrong.    The  opinion  refers  to  the  original 


312  JUST  COI^rPENSATION. 

the  amount  of  risk  involved  and  the  rate  of  return  neces- 
sarily vary  from  time  to  time  and  in  different  parts  of  the 
country;  ^-^  and  a  change  in  economic  conditions  may 
make  regulations  which  have  been  constitutional  become 
unconstitutional  or  make  regulations  which  have  been  un- 
constitutional become  constitutional.^^'* 

Yet,  on  the  other  hand,  the  court  has  no  right  to  con- 
sider whether  it  would  have  established  the  schedule  in- 
volved if  it  had  been  given  the  power.^^^  It  has  no  right 
to  apply  common  law  tests. ^-^  The  question  before  it  is 
simply  whether  the  schedule  of  rates  which  was  estab- 
lished by  the  appropriate  organ  of  government  clearly 
violates  the  Constitution.^ ^'^     The  amount  of  compensa- 

risks  of  the  business.  The  original  risk  is  as  objectionable  a  basis  as  the 
original  value.  And  see  Whitten,  op.  cit.,  p.  702. — It  does  not  follow  that 
if  other  businesses  are  not  regulated  railroads  may  not  be  regulated :  with 
Central  of  Ga.  Ry.  Co.  v.  R.  Comn.  of  Alabama  (1908)  161  Fed.  925,  995, 
compare  Chap.  5,  supra. 

i23Willcox  V.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  48,  29  Sup.  Ct. 
192,  198,  53  L.  ed.  382;  Pioneer  T.  &  T.  Co.  v.  Westenhaver  (1911)  29 
Okla.  429,  459,  118  Pac.  354,  366,  38  L.  R.  A.  N.  S.  1209;  Puget  S.  E.  Ry. 
V.  Railroad  Comn.  (1911)  65  Wash.  75,  97,  117  Pac.  739,  748;  Brunswick 
&  T.  W.  Dist.  V.  Maine  W.  Co.  (1904)  99  Me.  371,  380,  59  Atl.  537,  540. 
And  it  may  differ  in  different  parts  of  the  country:  Steenerson  v.  Great 
N.  Ry.  Co.  (1897)  69  Minn.  353,  385-390,  72  N.  W.  713,  719-721.  The  legal 
rate  varies  greatly  in  different  parts  of  the  country. 

124  See  Missouri  Rate  Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  ( 1913)  230 
U.  S.  474,  508,  33  Sup.  Ct.  975,  983,  57  L.  ed.  1595;  Minnesota  Rate  Cases- 
Simpson  V.  Shepard  (1913)  230  U.  S.  352,  473,  33  Sup.  Ct.  729,  769,  57  L. 
ed.  1511;  Smyth  v.  Ames  (1898)  171  U.  S.  361,  18  Sup.  Ct.  888,  43  L.  ed. 
197;  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129,  203,  67  S.  E.  613, 
645;  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed.  866,  875,  1  L.  R.  A. 
744,  750.  Compare  Steenerson  v.  Great  N.  Ry.  Co.  (1897)  69  Minn.  353, 
387,  390,  72  N.  W.  713,  720,  721. 

125  See  sec.  33,  supra;  and  Whitten,  Valuation  of  Public  Service  Cor- 
porations, pp.  690  et  seq.,  and  cases  there  cited. 

126  See  sec.  33,  supra. 

127  See  references  in  note  125,  supra.  The  correct  position  is  taken  in 
the  opinion  of  Stewart,  J.,  dissenting,  in  Pennsylvania  R.  Co.  v.  Philadel- 
phia County  (1908)  220  Pa.  100,  133,  68  Atl.  676,  681,  15  L.  R.  A.  108,  119. 


NET  EARNINGS.  313 

tion  for  property  taken  for  public  use  is  not  primarily  a 
judicial  question  ;^^^  and  even  where  it  is  contended  that 
the  railroad  is  not  being  accorded  the  equal  protection  of 
the  laws,  it  must  be  remembered  that  the  court  concedes 
that  legislatures  and  commissions  possess  considerable 
lee-way.^-^ 

But  before  going  further  let  us  note  the  decisions  on  the 
rate  of  return  to  which  we  have  already  referred."^ 

No  particular  rate  fixed  by  Supreme  Court. 

180.  As  we  have  already  seen,^"^  the  United  States  Su- 
preme Court  has  not  fixed  definitely  the  extent  to  which 
the  rate  of  return  to  the  carrier  may  be  reduced.  Some 
years  ago  it  declared  that  ''It  cannot  be  said  that  a  cor- 
poration is  entitled,  as  of  right,  and  without  reference  to 
the  interests  of  the  public,  to  realize  a  given  per  cent 
upon  its  capital  stock.  .  .  .  Each  case  must  depend  upon 
its  special  facts.  "^^-  The  court  has  not  even  named  a 
rate  of  return  upon  the  proper  valuation  to  which  a  rail- 
road would  be  entitled  in  normal  cases.  In  a  gas  case  it 
conceded  that  under  the  facts  of  the  case  the  company  was 
entitled  to  six  per  cent  upon  the  value  of  the  property, 
although  it  reversed  a  decree  which  enjoined  the  enforce- 
ment of  the  statute  involved;  ^^^  and  yet  on  the  same  day 
in  a  water  case  in  which  the  opinion  was  handed  down  by 

128  See  Bauman  v.  Ross  (1897)  167  U.  S.  548,  593,  17  Sup.  Ct.  966,  983, 
42  L.  ed.  270,  cases  there  cited,  and  discussion  in  note  17  of  Chap.  2,  supra. 

129  See  sees.  139,  140,  143,  supra.     Compare  7  A.  &  E.  An.  Cas.  478. 

130  In  sec.  178,  supra. 

131  See  sec.  178,  supra. 

132  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578,  596,  597, 
17  Sup.  Ct.  198,  205,  41  L.  ed.  560. 

i33Willcox  V.  Consolidated  G.  Co.  (1909)  212  U.  S.  19,  50,  29  Sup.  Ct. 
192,  199,  53  L.  ed.  382. 


314  JUST  COMPENSATION. 

another  justice  the  court  did  not  feel  called  upon  to  de- 
termine whether  a  demonstrated  reduction  of  income  to 
four  per  cent  would  or  would  not  be  constitutional.^^* 
In  an  earlier  case  it  had  said  that  it  could  not  declare  an 
act  unconstitutional  merely  because  under  it  the  com- 
pany could  not  earn  more  than  four  per  cent  upon  its 
capital  stock.''^^  The  court  has,  however,  declared  un- 
constitutional regulations  which  left  little  or  no  return  to 
investors  in  the  property  ;^^^  and,  on  the  other  hand,  it  has 
sustained  a  law  which  limited  the  return  to  an  irrigation 

134  Kjioxville  V.  Knoxville  W.  Co.  (1909)  212  U.  S.  1,  17,  29  Sup.  Ct. 
148,  154,  53  L.  ed.  371. 

135  "It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in  substance, 
that  the  tolls  prescribed  by  the  act  of  1890  were  wholly  inadequate  for 
keeping  the  road  in  proper  repair  and  for  earning  dividends,  we  could  not 
say  that  the  act  was  unconstitutional  merely  because  the  company  (as  was 
alleged  and  as  the  demurrer  admitted)  could  not  earn  more  than  four  per 
cent  on  its  capital  stock:"  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896) 
164  U.  S.  578,  596,  17  Sup.  Ct.  198,  205,  41  L.  ed.  560. 

136  As  the  court  said  in  Knoxville  v.  Knoxville  W.  Co.  (1909)  212  U.  S. 
1,  17,  29  Sup.  Ct.  148,  153,  53  L.  ed.  371,  "It  cannot  be  doubted  that  in  a 
clear  case  of  confiscation  it  is  the  right  and  duty  of  the  court  to  annul  the 
law.  Thus  in  Reagan  v.  Farmers'  L.  &  T.  Co.  ( 1894)  154  U.  S.  362,  14  Sup. 
Ct.  1047,  38  L.  ed.  1014,  where  the  property  was  worth  more  than  its  capi- 
talization, and  upon  the  admitted  facts  the  rates  prescribed  would  not  pay 
one-half  the  interest  on  the  bonded  debt;  in  Covington  &  L.  T.  R.  Co.  v. 
Sandford  (1896)  164  U.  S.  578,  17  Sup.  Ct.  198,  41  L.  ed.  560,  where  the 
rates  prescribed  would  not  even  pay  operating  expenses;  in  Smyth  v. 
Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819,  where  the  rates 
prescribed  left  substantially  nothing  over  operating  expenses  and  cost  of 
service;  and  in  Ex  parte  Young  (1908)  209  U.  S.  123,  28  Sup.  Ct.  441,  52 
L.  ed.  714,  13  L.  R.  A.  N.  S.  932,  14  A.  &  E.  An.  Cas.  764,  where,  on  the 
aspect  of  the  case  which  was  before  the  court,  it  was  not  disputed  that  the 
rates  prescribed  were  in  fact  confiscatory,  injunctions  were  severally  sus- 
tained. But  the  case  before  us  is  not  a  case  of  this  kind."  See  also  South- 
ern Ry.  Co.  V.  St.  Louis  H.  &  G.  Co.  (1909)  214  U.  S.  297,  29  Sup.  Ct.  678, 
53  L.  ed.  1004;  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913)  230  U. 
S.  352,  469-473,  33  Sup.  Ct.  729,  768,  769,  57  L.  ed.  1511.  Compare  Norfolk 
&  S.  T.  Co.  V.  Virginia  (1912)  225  U.  S.  264,  32  Sup.  Ct.  828,  56  L.  ed. 
1082,  where  the  court  sustained  a  statute  which  made  the  keeping  of  a  toll 
road  in  repair  a  condition  precedent  to  the  right  to  collect  tolls.  To  the 
same  effect  is  Back  R.  N.  T.  Co.  v.  Homberg  (1903)   96  Md.  430,  54  Atl.  82. 


NET  EARNINGS.  315 

company  to  six  per  cent,^^^  and  an  ordinance  under  which 
a  gas  company  received  more  than  six  per  cent.^"^ 

Other  decisions  in  conflict. 

181.  There  is  also  a  wide  range  in  the  decisions  of  the 
state  and  lower  federal  courts.  It  has  been  held,  for  ex- 
ample, that ' '  the  right  of  judicial  interference  exists  only 
when  the  schedule  of  rates  established  will  fail  to  secure 
to  the  owners  of  the  property  some  compensation  or  in- 
come from  their  investment.  As  to  the  amount  of  such 
compensation,  if  some  compensation  or  reward  is  in  fact 
secured,  the  legislature  is  the  sole  judge."  ^^^  And  in 
other  cases  state  regulations  have  been  sustained  although 
the  rates  of  return  from  the  property  were  not  large.^^^ 

137  Stanislaus  County  v.  San  Joaquin  &  K.  R.  C.  &  I.  Co.  (1904)  192  U. 
S.  201,  213,  24  Sup.  Ct.  241,  246,  48  L.  ed.  406.  Compare  Louisville  v. 
Cumberland  T.  &  T.  Co.  (1912)  225  U.  S.  430,  436,  32  Sup.  Ct.  741,  742,  56 
L.  ed.  1151. 

138  Cedar  Rapids  G.  L.  Co.  v.  Cedar  Rapids  (1912)  223  U.  S.  655,  32  Sup. 
Ct.  389,  56  L.  ed.  594. 

139  Chicago  &  N.  W.  Ry.  Co.  v.  Dey  (1888)  35  Fed.  866,  878,  879,  1  L.  R. 
A.  744,  752.  See  also  Chicago,  B.  &  Q.  R.  Co.  v.  Dey  (1889)  38  Fed.  656, 
663;  Tilley  v.  Savannah,  F.  &  W.  R.  Co.  (1881)  5  Fed.  641,  663,  664. 
Compare  comments  on  above  language  in  Southern  P.  Co.  v.  Board  of  R. 
Comrs,   (1896)   78  Fed.  236,  261. 

140  4  2-5%  held  constitutional.  "This  estimate  of  earnings  may  be  very 
materially  reduced,  or  the  estimate  of  the  value  of  the  plant  be  very  ma- 
terially increased,  before  the  court  will  be  justified  in  saying  that  the  plain- 
tiff's property  is  being  exposed  to  destruction  or  confiscation  by  an  unpro- 
fitable schedule  of  rates:"  Cedar  R.  W.  Co.  v.  Cedar  Rapids  (1902)  118 
Iowa,  234,  262,  91  N.  W.  1081,  1091.  2^%  on  terminals  and  5%  on 
remainder  of  road  not  confiscatory:  Steenerson  v.  Great  N.  Ry.  Co. 
(1897)  69  Minn.  353,  384,  389,  72  N.  W.  713,  719,  721.  5%  not  con- 
fiscatory, in  spite  of  fact  that  current  rates  of  interest  were  tempor- 
arily higher:  Spring  V.  W.  Co.  v.  San  Francisco  (1908)  165  Fed.  667,  684, 
685.  See  also  Central  of  Ga.  Ry.  Co.  v.  McLendon  (1907)  157  Fed.  961, 
974;  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  450,  120 
N.  W.  966,  974.  Earnings  of  6%  or  over  sustained  in  Home  T.  Co.  v. 
Carthage  (1911)  235  Mo.  644,  667,  139  S.  W.  547,  553;  Arkadelphia  E.  L. 
Co.    V.    Arkadelphia    (1911)    99   Ark.    178,    188,    137    S.    W.    1093,    1097; 


316  JUST  COMPENSATION. 

But,  on  the  other  hand,  other  courts  have  declared  uncon- 
stitutional not  only  regulations  which  left  returns  insuffi- 
cient to  pay  operating  expenses  or  insufficient  to 
pay  any  returns  to  stockholders,^'*^  but  also  regu- 
lations which  allowed  greater  returns  from  the  prop- 
erty,^'*^  in  some  cases  declaring  that  the  carriers  were  en- 
titled to  at  least  six  per  cent,^^^  and  in  other  cases  that 

Puget  S.  E.  Ry.  v.  Railroad  Comn.  (1911)  65  Wash.  75,  97,  117  Pac. 
739,  749. — On  this  note  see  also  Whitten,  Valuation  of  Public  Service  Cor- 
porations, chap.  30. 

141  Louisville  &  N.  R.  Co.  v.  Railroad  Comn.  of  Alabama  (1912)  196 
Fed.  800,  819;  Cumberland  T.  &  T.  Co.  v.  Memphis  (1908)  183  Fed.  875, 
876;  In  re  Arkansas  R.  Rates  (1908)  163  Fed.  141,  143;  Seaboard  A.  L. 
Ry.  Co.  v.  Railroad  Comn.  (1907)  155  Fed.  792,  807;  Ozark-Bell  T.  Co.  v. 
Springfield  (1905)  140  Fed.  666,  669;  Wallace  v.  Arkansas  C.  R.  Co.  (1902) 
118  Fed.  422,  424.  See  also  Morgan's  L.  &  T.  R.  Co.  v.  Railroad  Comn.  of 
La.  (1911)  127  La.  636,  670,  53  So.  890,  902;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Railroad  Comn.  of  Texas  (1909)  102  Tex.  338,  116  S.  W.  795;  Southern  I. 
Ry.  Co.  V.  Railroad  Comn.  (1909)  172  Ind.  113,  128,  87  N.  E.  966,  971; 
Southern  Ry.  Co.  v.  McNeill  (1907)  155  Fed.  756,  788;  Chicago  C.  Ry.  Co. 
V.  Chicago  (1905)  142  Fed.  844;  Pensacola  &  A.  R.  Co.  v.  State  (1889) 
25  Fla.  310,  332,  333,  5  So.  833,  843,  3  L.  R.  A.  661.  Compare  Boise  City 
L  &  L.  Co.  v.  Clark  (1904)  131  Fed.  415,  422;  State  v.  Sutton  (1912)  84 
N.  J.  L.,  84  Atl.  1057;  sec.  186,  infra. 

142  1.21%  held  confiscatory:  Trust  Co.  of  A.  v.  Chicago,  P.  &  St.  L.  Ry. 
Co.  (1912)  199  Fed.  593,  610.  3.97%  held  confiscatory:  Spring  V.  W.  W. 
v.  San  Francisco  (1911)  192  Fed.  137,  193.  4^%  held  confiscatory:  Mil- 
waukee E.  Ry.  &  L.  Co.  V.  Milwaukee  (1898)  87  Fed.  577,  585,  586.  Water 
company  entitled  to  at  least  5%:  Spring  V.  W.  W.  v.  San  Francisco  ( 1903) 
124  Fed.  574,  599;  followed  in  Contra  Costa  W.  Co.  v.  Oakland  (1904)  165 
Fed.  518,  532.  Water  company  should  receive  at  start  5%:  Long  Branch 
Comn.  v.  Tintern  M.  W.  Co.  (1905)  70  N.  J.  Eq.  71,  94,  95,  62  Atl.  474, 
482,  483. — On  this  note  see  also  Whitten,  Valuation  of  Public  Service  Cor- 
porations, chap.  30. 

143  St.  Louis  &  S.  F.  R.  Co.  v.  Hadley  (1909)  168  Fed.  317,  324,  354; 
Trust  Co.  of  A.  v.  Chicago,  P.  &  St.  L.  Ry.  Co.  (1912)  199  Fed.  593,  605. 
See  also  Owensboro  v.  Cumberland  T.  &  T.  Co.  (1909)  174  Fed.  739.  En- 
titled to  6%,  but  that  rate  shown  in  this  case:  Lincoln  G.  &  E.  L.  Co.  v. 
Lincoln  (1909)  182  Fed.  926,  929,  reversed  on  another  ground  in  Lincoln 
G.  &  E.  L.  Co.  V.  Lincoln  (1912)  223  U.  S.  349,  32  Sup.  Ct.  271,  56  L.  ed. 
466.  Not  less  than  the  legal  rate  of  interest  (6%.  In  other  words,  the 
maximiim  rate  allowed  on  loans,  however  great  the  risk,  is  necessarily  the 
minimum   rate  which  may  constitutionally  be  allowed   on   investments   in 


NET  EARNINGS.  317 

they  were  entitled  to  seven  ^'^^  or  seven  and  a  half  ^**^  or 
even  eight  per  cent.^"*^ 

Distribution  between  stockholders  and  bondholders. 

182.  We  have  already  seen  that  the  principal  upon 
which  the  return  is  to  be  based  is  the  cost  of  producing  at 
the  present  time  a  railroad  which  would  be  equally  effi- 

railroad  securities)  :  Pennsylvania  R.  Co.  v.  Philadelphia  County  (1908) 
220  Pa.  100,  114,  68  Atl.  676,  678,  15  L.  R.  A.  N.  S.  108,  117.  Entitled  to 
6%.  "He  would  expect,  and  have  a  just  and  reasonable  right  to  expect,  a 
return  of  6%,  not  because  that  happens  to  be  the  interest  rate  by  law  es- 
tablished in  the  state  of  New  York,  but  because  it  is  the  return  ordinarily 
sought  and  obtained  on  investments  of  that  degree  of  safety  in  the  city  of 
New  York."  "As  was  observed  by  counsel,  equally  learned  in  law  and  poli- 
tics, it  would  be  easy  to  amend  the  legal  rate,  and  judicial  dependence  upon 
an  interest  rate  susceptible  of  change  by  the  same  legislature  that  regu- 
lates the  rate  of  earnings  would  be,  to  say  the  least,  inadvisable:"  Con- 
solidated Gas  Co.  V.  New  York  (1907)  157  Fed.  849,  871,  870,  reversed  on 
another  ground  in  Willcox  v.  Consolidated  Gas  Co.,  cited  in  note  133,  supra. 
— Entitled  to  "amount  equal,  at  least,  to  the  usual  and  legal  rate  of  interest 
in  the  locality  where  the  railroad  is  situated:"  Louisville  &  N.  R.  Co.  v. 
Brown  (1903)  123  Fed.  946,  951.  See  also  Pioneer  T.  &  T.  Co.  v.  Westen- 
haver  (1911)  29  Okla.  429,  460,  118  Pac.  354,  366,  38  L.  R.  A.  N.  S.  1209. 
Compare  Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.  (1904)  99  Me.  371,  379, 
380,  59  Atl.  537,  540,  which  did  not  involve  the  constitutionality  of  rate 
regulations  but  in  which  the  court  said  that  "An  equivalent  to  the  prevail- 
ing rate  of  interest  might  be  a  reasonable  return,  and  it  might  not.  It 
might  be  too  high  or  it  might  be  too  low." 

i44Shepard  v.  Northern  P.  Ry.  Co.  (1911)  184  Fed.  765,  816,  reversed 
on  another  ground  in  Minnesota  Rate  Cases — Simpson  v.  Shepard  (1913) 
230  U.  S.  352,  33  Sup.  Ct.  729,  57  L.  ed.  1511;  Cumberland  T.  &  T.  Co.  v. 
Louisville  (1911)  187  Fed.  637,  658;  Cumberland  T.  &  T.  Co.  v.  Railroad 
Comn.  of  La.  (1907)  156  Fed.  823,  833,  834,  reversed  on  another  ground  in 
Railroad  Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.  (1909)  212  U.  S.  414, 
29  Sup.  Ct.  357,  53  L.  ed.  577. 

145  In  re  Arkansas  Rate  Cases   (1911)    187  Fed.  290,  348. 

146  Des  Moines  W.  Co.  v.  Des  Moines  (1911)  192  Fed.  193,  199.  "The 
current  rate  of  profit  upon  property  used  in  business  enterprises  similar 
to  railroads  gives  a  net  income  upon  the  value  of  such  property  not  lower 
than  8%  per  annum.  Whether  we  take  the  legal  rate  of  profit  by  way  of 
interest  on  loans  of  money,  or  the  rate  of  profit  which  common  experience 
shows  to  be  the  average,  and,  therefore,  approximately  a  just,  return  from 


318  JUST  COMPENSATION. 

cient.^''^  This  is  true  whether  the  road  was  built  entirely 
from  money  contributed  by  the  stockholders  or  whether 
most  of  the  capital  came  from  bondholders.  It  is  only  the 
completed  road  which  is  considered. 

For  this  reason  the  rate  of  return  to  the  company  can- 
not depend  upon  how  much  of  the  revenue  is  to  go  to 
bondholders  and  how  much  to  stockholders.^"*^  The  meth- 
ods of  financing  any  particular  company  cannot  be  al- 
lowed to  make  any  difference  in  the  results.  The  hazards 
of  the  business  are  to  be  considered  as  falling  upon  the 
company  as  a  whole  and  not  as  the  risks  of  the  stockhold- 
ers or  the  bondholders  as  separate  classes.^  ^^  If,  then,  the 
company  has  made  a  bad  bargain  with  its  bondholders  the 
stockholders  should  suffer  from  it,  just  as  they  should 
suffer  if  the  company  has  made  a  bad  bargain  with  a  con- 
struction company;  and,  on  the  other  hand,  if  the  company 
has  secured  money  from  bondholders  upon  favorable 
terms  the  stockholders  certainly  are  entitled  to  the  ad- 
vantages which  should  come  from  good  financial  manage- 
rnent.^^^ 

EXCEPTIONAL  CONDITIONS. 

183.  As  we  have  already  said,  while  the  factors  which 
we  have  considered  govern  nonnal  cases  in  which  it  is 

the  use  of  other  forms  of  property,  both  modes  lead  to  the  same  result:" 
Central  of  Ga.  Ry.  Co.  v.  Railroad  Comn.  of  Alabama  (1908)  161  Fed.  925, 
996.    See  also  Montana,  W.  &  S.  R.  Co.  v.  Mcrley  (1912)   198  Fed.  991,  1007. 

147  See  sec.  157,  supra. 

148  See  sec.  156,  supra. 

149  The  risk  per  dollar  upon  the  property  as  a  whole  is  less  than  the 
risk  per  dollar  on  the  investment  of  stockholders  and  greater  than  the  risk 
per  dollar  on  the  investment  of  bondholders,  where  a  large  part  of  the  capi- 
tal comes  from  bondholders. 

150  On  this  section  as  a  whole  see  Whitten,  Valuation  of  Public  Service 
Corporations,  sees.  792,  735;  Steenerson  v.  Great  N.  Ry.  Co.  (1897)  69 
Minn.  353,  385-389,  72  N.  W.  713,  719-721. 


EXCEPTIONAL  CONDITIONS.  319 

claimed  that  the  schedules  as  entireties  are  unconstitu- 
tional, there  are  also  at  times  exceptional  conditions 
which  must  be  taken  into  consideration.^  ^^ 

Some  of  the  questions  which  may  be  raised  are  easily 
solved.  Thus,  while  a  schedule  of  rates  may  be  constitu- 
tional at  one  time  and  unconstitutional  at  another  time,^'^^ 
the  courts  would  doubtless  recognize  the  importance  to 
the  public  of  stability  of  rates  ^^^  and  would  not  declare 
that  rates  which  had  been  constitutional  became  unconsti- 
tutional because  of  a  change  in  conditions  which  was 
slight  or  appeared  likely  to  be  of  but  short  duration. ^^^ 
And,  on  the  other  hand,  if  a  railroad  were  built  for  a 
temporary  purpose,  as  in  the  case  of  a  logging  railroad, 
where  the  sources  of  traffic  would  be  depleted  within  a 
few  years,  it  would  unquestionably  be  entitled  during  the 
years  when  it  was  being  used  for  that  purpose  to  a  higher 
rate  of  return  upon  the  value  of  its  property  than  could 
be  claimed  in  the  case  of  a  normal  road.^^^ 

But  it  is  not  clear  just  how  far  a  railroad  must  be  al- 
lowed to  earn  a  revenue  upon  value  which  does  not  repre- 
sent investment.  Where  there  has  been  a  general  increase 
in  the  value  of  land  in  the  territory  through  which  a  rail- 

151  Sec.   154,  supra. 

152  Sec.  179,  supra. 

153  Sec.  177,  supra. 

154  Sec.  158,  supra. 

155  In  the  case  of  a  road  properly  located  which  would  completely  exhaust 
the  sources  of  traffic  within  ten  years  from  the  time  of  its  construction,  the 
depreciation  during  those  ten  years  would  be  the  difference  between  the 
cost  of  reproduction  new  at  the  beginning  of  that  period  and  the  value  at 
the  end  of  that  period  of  the  property  for  purposes  other  than  the  use  of 
that  particular  road.  Earnings  during  those  ten  years  should  not  only 
yield  adequate  returns  upon  the  value  of  the  property  but  should  also  be 
sufficient  to  cover  that  depreciation.  As  to  roads  whose  traffic  is  insuffi- 
cient to  warrant  returns  upon  the  full  cost  of  reproduction  see  authorities 
cited  in  note  34,  supra. 


320  JUST  COIMPENSATION. 

road  runs,  a  similar  increase  in  the  value  of  the  land  of 
the  company  should  be  recognized;  '^^^  yet  if  land  imme- 
diately along  the  route  of  a  railroad  has  increased  in  value 
because  of  the  presence  of  the  railroad  to  a  greater  extent 
than  land  more  remote  from  the  tracks,  that  part  of  the 
increase  in  value  should  be  ignored.^'*"  And  if  a  railroad 
were  allowed  by  a  state  to  extend  its  tracks  through  prop- 
erty of  which  the  title  remained  in  the  state,  the  value  of 
that  right  of  way  could  not  be  included  in  the  value  upon 
which  the  railroad  was  entitled  to  earn  a  revenue.^^^  But 
would  or  would  not  the  law  be  different  if  the  state  had 
conveyed  title  in  that  land  to  the  railroad  company  and 
the  company  insisted  upon  receiving  an  income  sufficient 
to  allow  of  returns  upon  that  part  of  its  property?  ^^^ 

PARTICULAR  RATES. 

Decisions  that  only  schedule  as  entirety  may  be  consid- 
ered. 

184.  Thus  far  we  have  considered  simply  cases  in  which 
it  was  claimed  that  the  schedule  as  an  entirety  was  un- 
constitutional. We  must  now  observe  cases  in  which  the 
attack  is  restricted  to  part  of  the  rates. 

The  court  has  declared  repeatedly  that  if  the  state  al- 

156  See  sees.  155  et  seq.,  175,  supra;  Whitten,  Valuation  of  Public  Service 
Corporations,  chap.  6.  But  compare  Willcox  v.  Consolidated  G.  Co.  (1909) 
212  U.  S.  19,  52,  29  Sup.  Ct.  192,  200,  53  L.  ed.  382;  In  re  Advances  in 
Rates— Western  Case   (1911)   20  I.  C.  C.  307,  337  et  seq. 

157  See  note  30,  supra. 

158  Lincoln  G.  &  E,  L.  Co.  v.  Lincoln  (1909)  182  Fed.  926,  928.  See  also 
Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144  Iowa,  426,  437,  438,  120  N. 
W.  966,  970. 

159  As  bearing  on  this  question  see  Cumberland  T.  &  T.  Co.  v.  Louisville 
(1911)  187  Fed.  637,  647;  Cedar  R.  G.  L.  Co.  v.  Cedar  Rapids  (1909)  144 
Iowa,  426,  437,  438,  120  N.  W.  966,  970;  Whitten,  Valuation  of  Public  Ser- 
rice  Corporations,  p.  Ill,  chaps.  8,  7. 


PARTICULAR  RATES.  321 

lows  a  railroad  to  earn  a  suitable  revenue  from  its  local 
business  as  a  whole  it  may  require  the  company  to  carry 
at  unprofitable  rates  upon  separate  parts  of  the  road  ^^° 
and  upon  separate  kinds  of  traffic.^^^     Such  statements 

160  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649,  15  Sup.  Ct. 
484,  39  L.  ed.  567.  The  question  is  discussed  more  fully  in  St.  Louis  &  S. 
F.  Ry.  Co.  V.  Gill  (1891)  54  Ark.  101,  15  S.  W.  18,  11  L.  R.  A.  452.  See 
also  Chicago  U.  T.  Co.  v.  Chicago  (1902)  199  111.  579,  65  N.  E.  470;  South- 
ern P.  Co.  V.  Board  of  R.  Comrs.  (1896)  78  Fed.  236,  263,  264;  Missouri 
P.  Ry.  Co.  V.  Smith  (1895)  60  Ark.  221,  29  S.  W.  752;  Ex  parte  Koehler 
(1885)  23  Fed.  529;  Wyman,  Public  Service  Corporations,  sec.  1175.  And 
see  Interstate  Com.  Comn.  v.  Louisville  &  N.  R.  Co.  (1902)  118  Fed,  613, 
where  losses  on  one  part  of  the  line  did  not  justify  the  rates  there  charged 
by  the  carrier.  Compare  Steenerson  v.  Great  N.  Ry.  Co.  ( 1897 )  69  Minn. 
353,  72  N.  W.  713,  which  decides  that  "where  .  .  .  portion  of  the  line  is  not 
self-supporting,  but  is  an  encumbrance  on,  and  not  a  feeder  of,  the  rest  of 
the  line  or  system,  ...  in  determining  what  are  reasonable  rates  for  the 
rest  of  the  line  or  system,  such  portion  may  be  rejected." 

161  In  the  Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S. 
352,  466,  33  Sup.  Ct.  729,  767,  57  L.  ed.  1511,  the  court  said,  "We  express 
no  opinion  with  respect  to  the  method  adopted  in  dividing  expenses  between 
the  passenger  and  freight  departments.  For  the  purpose  of  determining 
whether  the  rates  permit  a  fair  return,  the  results  of  the  entire  intrastate 
business  must  be  taken  into  account."  In  Willcox  v.  Consolidated  Gas  Co. 
(1909)  212  U.  S.  19,  54,  29  Sup.  Ct.  192,  200,  201,  53  L.  ed.  382,  the  court 
said,  "The  only  interest  of  the  complainant  in  question  is  to  find  out 
whether,  by  the  reduction  to  the  city,  the  complainant  is  upon  the  whole 
unable  to  realize  a  return  sufficient  to  comply  with  what  it  has  the  right 
to  demand.  .  .  .  We  cannot  see  from  the  whole  evidence  that  the  price 
fixed  for  gas  supplied  to  the  city  by  wholesale,  so  to  speak,  would  so  reduce 
the  profits  from  the  total  of  the  gas  supplied  as  to  thereby  render  such 
total  profits  insufficient  as  a  return  upon  the  property  used  by  the  complain- 
ant. So  long  as  the  total  is  enough  to  furnish  such  return  it  is  not  im- 
portant that  with  relation  to  some  customers  the  price  is  not  enough." 
See  also  212  U.  S.  at  21.  In  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota 
(1902)  186  U.  S.  257,  22  Sup.  Ct.  900,  46  L.  ed.  1151,  where  the  constitu- 
tionality of  coal  rates  was  considered,  the  court  said,  "Notwithstanding  the 
evidence  of  the  defendant  that,  if  the  rates  upon  all  merchandise  were  fixed 
at  the  amount  imposed  by  the  commission  upon  coal  in  carload  lots,  the 
road  would  not  pay  its  operating  expenses,  it  may  well  be  that  the  existing 
rates  upon  other  merchandise,  which  are  not  disturbed  by  the  commission 
may  be  sufficient  to  earn  a  large  profit  to  the  company,  though  it  may  earn 
little  or  nothing  upon  coal  in  carload  lots.  In  Smyth  v.  Ames  we  expressed 
the  opinion  that  the  reasonableness  or  unreasonableness  of  rates  prescribed 


322  JUST  COMPENSATION. 

by  a  state  for  the  transportation  of  persons  or  property  wholly  within  its 
limits,  must  be  determined  without  reference  to  the  interstate  business 
done  by  the  carrier,  or  the  profits  derived  from  it,  but  it  by  no  means  fol- 
lows that  the  companies  are  entitled  to  earn  the  same  percentage  of  profits 
upon  all  classes  of  freight  carried.  .  .  .  We  do  not  think  it  beyond  the 
power  of  the  state  commission  to  reduce  the  freight  upon  a  particular  arti- 
cle, provided  the  companies  are  able  to  earn  a  fair  profit  upon  their  entire 
business,  and  the  burden  is  upon  them  to  impeach  the  action  of  the  com- 
mission in  this  particular.  ...  In  exercising  its  power  of  supervising  such 
rates  the  commission  is  not  bound  to  reduce  the  rates  upon  all  classes  of 
freight,  which  may  perhaps  be  reasonable,  except  as  applied  to  a  particular 
article;  and  if,  upon  examining  the  tariffs  of  a  certain  road,  the  commis- 
sion is  of  opinion  that  the  rate  upon  a  particular  article,  or  class  of  freight, 
is  disproportionately  or  unreasonably  high,  it  may  reduce  such  rate,  not- 
withstanding that  it  may  be  impossible  for  the  company  to  determine  with 
mathematical  accuracy  the  cost  of  transportation  of  that  particular  article 
as  distinguished  from  all  others.  Obviously  such  a  reduction  could  not  be 
shown  to  be  unreasonable  simply  by  proving  that,  if  applied  to  all  classes 
of  freight,  it  would  result  in  an  unreasonably  low  rate.  ...  It  is  suffi- 
cient, however,  for  the  purpose  of  this  case  to  say  that  the  action  of  the 
commission  in  fixing  the  rate  has  not  been  shown  to  be  so  unjust  or  unrea- 
sonable as  to  amount  to  a  taking  of  property  without  due  process  of  law." 
In  Smyth  v.  Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819,  it 
was  decided  that  the  rates  as  an  entirety  were  so  low  as  to  prevent  the 
companies  from  earning  just  compensation.  In  fact  only  the  freight  rates 
were  considered.  The  decree  therein  was  modified  later  (1898)  171  U.  S. 
361,  18  Sup.  Ct.  888,  43  L.  ed.  197,  the  court  saying,  "It  was  appropriate 
and  necessary  to  inquire  as  to  the  earnings  of  the  respective  companies 
under  the  rates  which  they  had  established — looking  at  those  rates,  also, 
as  an  entirety.  In  this  way  we  ascertained  the  probable  effect  of  the  statute 
in  question.  We  did  not  intend,  by  an  affirmance  of  the  several  decrees,  to 
adjudge  that  the  railroad  companies  should  not,  at  any  time  in  the  future, 
if  they  saw  proper,  reduce  the  rates,  or  any  of  them,  under  which  they  were 
conducting  business  at  the  time  the  final  decrees  were  rendered,  nor  that  the 
state  board  of  transportation  should  not  reduce  rates  on  specific  or  par- 
ticular articles  below  the  rates  which  the  companies  were  charging  on  such 
articles  when  the  decrees  were  entered.  It  may  well  be  that  on  some  par- 
ticular article  the  railroad  companies  may  deem  it  wise  to  make  a  reduc- 
tion of  the  rate,  and  it  may  be  that  the  public  interests  will  justify  the  state 
board  of  transportation  in  ordering  such  reduction.  We  have  not  laid  down 
any  cast-iron  rule  covering  each  and  every  separate  rate.  We  only  adjudged 
that  the  enforcement  of  the  schedule  of  rates  established  by  the  state 
statute,  looking  at  such  rates  as  a  whole,  would  deprive  the  railroad  com- 
panies of  the  compensation  they  were  legally  entitled  to  receive.  We  did 
not  pass  judgment  upon  the  reasonableness  or  unreasonableness  of  the 
rates  on  any  particular  article  prescribed  by  the  statute  or  by  the  railroad 
companies.     If  the  state  should  by  statute,  or  through  its  board  of  trans- 


PARTICULAR  RATES.  323 

have  been  made  in  a  number  of  leading  cases;  and  the 
same  position  has  been  taken  by  state  and  lower  federal 
courts.^  ^2 

portation,  prescribe  a  new  schedule  of  rates,  covering  substantially  all  arti- 
cles, and  which  would  materially  reduce  those  charged  by  the  companies 
respectively,  or  should  by  a  reduction  of  rates  on  a  limited  number  of  arti- 
cles make  its  schedule  of  rates,  as  a  whole,  produce  the  same  result,  the 
question  will  arise  whether  such  rates,  taking  into  consideration  the  rights 
of  the  public  as  well  as  the  rights  of  carriers,  are  consistent  with  the  prin- 
ciples announced  by  this  court  in  the  opinion  heretofore  delivered."  In 
St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649,  15  Sup.  Ct.  484,  39  L. 
ed.  567  (1891)  54  Ark.  112,  15  S.  W.  18,  11  L.  R.  A.  462,  a  decision  that 
the  company  may  be  required  to  carry  at  a  loss  upon  separate  parts  of  the 
road  was  sustained  by  reasoning  which  apparently  would  apply  to  the  car- 
riage of  separate  kinds  of  trafl&c. 

162  In  Matthews  v.  Board  of  Corp.  Comrs.  (1901)  106  Fed.  7,  10,  where  it 
was  not  shown  that  the  particular  order  of  the  commission  was  unjust, 
the  court  said,  citing  Smyth  v.  Ames  (note  161,  supra),  that  "the  Supreme 
Court  of  the  United  States,  in  deciding  whether  the  rates  fixed  under  legis- 
lative authority  violate  the  Fourteenth  Amendment,  do  not  rest  their  judg- 
ment on  one  set  of  rates  for  specific  articles,  but  they  take  into  consid- 
eration all  the  rates  on  all  articles,  and  decide  whether,  as  a  whole,  the 
result  is  unreasonable."  Smyth  v.  Ames  does  not  establish  such  a  rule, 
although  consistent  with  it.  In  Missouri  P.  Ry.  Co.  v.  Smith  (1895| 
60  Ark.  221,  29  S.  W.  752,  an  allegation  that  statutory  rates  of  fare  were 
inadequate  was  held  bad  on  demurrer  because  it  did  not  show  that  statutory 
rates  prevented  a  profit  on  the  company's  traffic  as  a  whole.  In  Chicago  & 
N.  W.  Ry.  Co.  V.  Dey  (1888)  35  Fed.  866,  881,  1  L.  R.  A.  744,  753,  the  court 
granted  a  preliminary  injunction  restraining  the  enforcement  of  a  schedule 
of  freight  charges,  but  said  that  "the  schedule  as  a  whole  must  control,  and 
its  validity  or  invalidity  does  not  depend  upon  the  sufficiency  or  insuffi- 
ciency of  the  rates  for  any  few  particular  subjects  of  transportation."  In 
Pensacola  &  A.  R.  Co.  v.  State  (1889)  25  Fla.  310,  331,  342,  5  So.  833,  842, 
847,  3  L.  R.  A.  661,  669,  672,  decided  after  the  Minnesota  case  referred  to  in 
note  163,  infra,  had  been  decided  by  the  state  court  but  before  it  had 
been  passed  upon  by  the  higher  court,  that  case  was  distinguished  as 
not  "involving  the  entire  rates,  but  only  the  rate  on  one  article,  and 
there  was  no  contention  that  the  entire  tariffs,  as  prescribed  by  the 
commissioners,  would  not  pay  operating  expenses.  The  fact  that  the 
tarifif  on  simply  one  or  several  articles  may  be  unremunerative  is  not  ground 
for  an  assumption  that  the  tarifi"s  are  so  as  a  whole,  nor  reason  to  our 
minds  for  judicial  interference  in  behalf  of  the  railroad  company."  In 
the  Florida  case  a  plea  that  the  passenger  rates  were  unremunerative  was 
insufficient,  but  a  further  plea  that  the  rates  as  a  whole  were  unremunera- 
tive was  held  to  be  good.     See  also  People  v.  Public  Service  Comn.   (1912) 


324  JUST  COMPENSATION. 

Decisions  on  particular  rates. 

185.  On  the  other  hand,  without  discussing  the  ques- 
tion, the  court  has  declared  unconstitutional  Minnesota 
regulations  which  related  only  to  milk  rates^^^  and  Ne- 
braska regulations  which  related  only  to  freight  rates  j^^'* 
and  in  a  recent  case,  while  it  refused  to  declare  a  particu- 
lar rate  invalid,  saying  that  the  evidence  was  insufficient 
and  calling  attention  to  "the  great  difficulty  in  the  at- 
tempt to  measure  the  reasonableness  of  charges  by  refer- 
ence to  the  cost  of  transporting  the  particular  class  of 
freight  concerned,  "^^^  it  affirmed  the  decree  of  the  state 
court ' '  without  prejudice  to  the  right  of  the  railroad  com- 
pany to  reopen  the  case  by  appropriate  proceedings  if, 

153  N.  Y.  App.  Div.  129,  138  N.  Y.  Supp.  434;  Ex  parte  Koehler  (1885)  23 
Fed.  529,  532. 

163  Chicago,  M.  &  St.  P.  Ky.  Co.  v.  Minnesota  (1890)  134  U.  S.  418,  10 
Sup.  Ct.  462,  33  L.  ed.  970.  Nothing  was  said  as  to  the  revenue  from  the 
local  traffic  as  a  whole.  See  also  Southern  P.  Co.  v.  Campbell  (1911)  189 
Fed.   182.     Compare  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Railroad  Comn.  of  Texas 

(1909)  102  Tex.  338,  116  S.  W.  795.  The  Minnesota  case  turned  more  upon 
the  common  law  and  the  powers  of  the  courts  at  common  law  than  do  later 
cases. 

164  Smyth  V.  Ames,  cited  in  note  161,  supra.  See  also  Chicago  &  N.  W. 
Ry.  Co.  V.  Dey,  cited  in  note  162,  supra. 

165  See  also  Northern  P.  Ry.  Co.  v.  Lee  (1912)  199  Fed.  621,  632,  and 
cases  there  cited;  Atlantic  C.  L.  R.  Co.  v.  Florida  (1906)  203  U.  S.  256, 
260,  27  Sup.  Ct.  108,  109,  51  L.  ed.  174;  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
United  States  (1913)  203  Fed.  56,  69. — On  the  apportionment  of  the  value 
of  the  property  to  find  the  basis  on  which  to  estimate  the  reasonableness  of 
rates  on  particular  classes  of  traffic,  see  the  discussion  in  sec.  166,  supra. 
On  the  propriety  of  considering  the  value  of  the  service  to  the  patron,  see 
United  States  v.  Chandler-Dunbar  W.  P.  Co.  (1913)  229  U.  S.  53,  76,  33 
Sup.  Ct.  667,  677,  57  L.  ed.  1063;  Boston  Chamber  of  Commerce  v.  Boston 

(1910)  217  U.  S.  189,  194,  195,  30  Sup.  Ct.  459,  460,  54  L.  ed.  725; 
Minnesota  Rate  Cases— Simpson  v.  Shepard  (1913)  230  U.  S.  352,  451,  33 
Sup.  Ct.  729,  761,  57  L.  ed.  1511;  Clyde  v.  Richmond  &  D.  R.  Co.  (1893)  57 
Fed.  436,  440;  Salt  R.  V.  C.  Co.  v.  Nelssen  (1906)  10  Ariz.  9,  85  Pac.  117,  12 
L.  R.  A.  N.  S.  711;  Hearings  of  Senate  Committee  on  Interstate  Commerce, 
April,  1905,  vol.  II,  p.  1099;  Freund,  Police  Power,  pp.  578,  579.  But  com- 
pare sec.  177,  supra. 


PARTICULAR  RATES.  325 

after  adequate  trial,  it  thinks  it  can  prove  more  clearly 
than  at  present  the  confiscatory  character  of  the  rates  for 
coal/'i^'^ 

Discussion  on  considering  merely  schedule  as  entirety. 

186.  From  these  authorities  it  seems  clear  that  the  fact 
that  the  rates  for  a  portion  of  the  transportation  are  un- 
profitable does  not  necessarily  render  the  governmental 
regulations  unconstitutional.  The  state  may  require  a 
railroad  to  render  services  for  which  it  cannot  expect  any 
adequate  return ;^^''  and  it  may  require  a  public  service 
corporation  to  render  services  to  patrons  whose  calls  upon 
it  are  light  at  the  same  rate  as  is  charged  to  patrons 
whose  calls  upon  it  are  heavier,  although  in  the  former 
case  the  services  must  be  rendered  at  a  loss.^^^  And  so, 
even  if  it  were  proved  that  under  a  particular  regulation 
the  company  would  not  receive  even  the  operating  ex- 
penses, the  regulations  would  not  necessarily  be  unconsti- 
tutional.i^^ 

i66Nortliern  P.  Ry.  Co.  v.  North  Dakota  (1910)  216  U.  S.  579,  581,  30 
Sup,  Ct.  423,  424,  54  L.  ed.  634.  See  also  Wood  v.  Vandalia  R.  Co.  (1913) 
231  U.  S.  1,  34  Sup.  Ct.  7,  58  L.  ed.;  dicta  in  Interstate  Com.  Comn. 
V.  Union  P.  R.  Co.  (1912)  222  U.  S.  541,  32  Sup.  Ct.  108,  56  L.  ed.  308; 
and  cases  in  note  173,  infra. 

167  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Comn.  (1907)  206  U. 
S.  1,  24,  25,  27  Sup.  Ct.  585,  594,  51  L.  ed.  933;  State  v.  Louisville  &  N. 
R.  Co.  (1912)  62  Fla.  315,  57  So.  175;  State  v.  Missouri  P.  Ry.  Co.  (1907) 
76  Kan.  467,  491,  92  Pac.  606,  614;  Washington  S.  Ry.  Co.  v.  Common- 
wealth (1911)  112  Va.  515,  71  S.  E.  539;  and  see  note  169,  infra.  Compare 
George  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1908)  214  Mo.  551,  113  S.  W.  1099; 
State  ex  rel.  Washington  M.  Co.  v.  Great  N.  Ry.  Co.  (1906)  43  Wash.  658, 
86  Pac.  1056,  6  L.  R.  A.  N.  S.  908;  Chicago  C.  Ry.  Co.  v.  Chicago  (1905) 
142  Fed.  844;  note  141,  supra. 

168  Lincoln  G.  &  E.  L.  Co.  v.  Lincoln  (1909)  182  Fed.  926,  929.  See  also 
Puget  S.  E.  Ry.  v.  Railroad  Comn.  (1911)  65  Wash.  75,  87,  96,  117  Pac. 
739,  744,  748;  Wyman,  Business  Policies  Inconsistent  with  Public  Employ- 
ment, 20  Harv.  L.  Rev.  511,  514. 

169  See,  e.  g.,  Boise  City  L  &  L.  Co.  v.  Clark  (1904)  131  Fed.  415,  422; 
state  V.  Sutton   (1912)  84  N.  J.  L.,  84  Atl.  1057;  Ex  parte  Koehler   (1885) 


326  JUST  COMPENSATION. 

Yet,  on  the  other  hand,  it  seems  that  it  would  be  going 
too  far  to  say  that  if  the  rates  as  a  whole  yield  an  ade- 
quate return  every  particular  rate  must  be  constitutional. 
Regulations  which  limit  part  of  the  rates  cannot  be  en- 
joined merely  because  under  them  the  rates  as  an  en- 
tirety will  not  yield  a  sufficient  return  ;^'^"  and,  conversely, 
regulations  of  particular  rates  should  not  be  sustained 
merely  because  a  sufficient  return  is  secured  from  the 
rates  as  an  entirety.  The  court  should,  rather,  say  that  if 
the  total  returns  are  adequate  something  more  than  the 
inadequacy  of  particular  returns  would  have  to  be  shown 
before  the  particular  rates  could  be  held  unconstitution- 
al.^'^^ It  should  say  that  before  the  particular  regulations 
could  be  declared  unconstitutional— certainly  in  any 
cases  other  than  those  arising  under  the  just  compensation 
provision  of  the  Fifth  Amendment,  which  relates  only  to 
the  federal  government— it  would  be  necessary  to  show 
clearly  that  the  organ  of  government  which  had  power  to 
decide  upon  questions  of  policy^ ''^^  had  acted  so  outrage- 
ously that  there  could  be  no  honest  difference  of  opinion 
that  it  was  committing  an  act  of  spoliation  under  the 
guise  of  regulating  rates. ^^^ 

23  Fed.  529,  5.32.  Compare  Lehigh  V.  K.  Co.  v.  United  States  (1913) 
204  Fed.  986;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States  (1913) 
203  Fed.  56,  59;  Morgan's  L.  &  T.  R.  Co.  v.  Railroad  Comn.  of  La.  (1911) 
127  La.  636,  667,  53  So.  890,  901;  Chicago,  St.  P.,  M.  &  0.  Ry.  Co.  v. 
Becker  (1888)  35  Fed.  883;  and  end  of  note  167,  supra. 

170  Northern  P.  Ry.  Co.  v.  Lee  (1912)  199  Fed.  621.  See  also  Higginson 
V.  Chicago,  B.  &  Q.  R.  Co.    (1900)   100  Fed.  235. 

171  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Comn.  (1907)  206  U.  S. 
1,  24,  25,  27  Sup.  Ct.  585,  594,  51  L.  ed.  933;  State  v.  Missouri  P.  Ry.  Co. 
(1907)   76  Kan.  467,  491,  92  Pac.  606,  614. 

172  See  sec.  140,  supra. 

173  Of  course,  the  rule  may  be  different  where  special  provisions  of  state 
constitutions  or  statutory  grants  of  power  to  commissions  are  involved: 
see  Morgan's  L.  &  T.  R.  Co.  v.  Railroad  Comn.  of  La.  (1911)  127  La.  636, 
665,  53  So.  890,  900;   Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas   (1909)    102  Tex. 


PARTICULAR  RATES.  327 

Mileage  books. 

187.  The  court  has,  however,  decided  that  a  state  may 
not  require  a  railroad  company  to  sell  mileage  books  at  a 
lower  rate  per  mile  than  the  company  is  authorized  to 
charge  for  ordinary  tickets.^  ^^  From  this  decision  three 
justices  dissented;  and  it  is  clearly  unsound. 

Before  as  well  as  after  the  enactment  of  the  law  many 
railroads  issued  mileage  books  at  reduced  rates,  good  for 
extended  periods,  and  the  court  did  not  criticise  this  cus- 
tom."^ The  objection,  and  the  only  real  objection,  to  the 
law  was  that  it  regulated  the  railroads  in  a  respect  in 
which  a  majority  of  the  court  thought  that  the  companies 
should  be  left  free  from  regulation;  and  as  the  court  has 

338,  116  S.  W.  795;  Pennsylvania  R.  Co.  v.  Philadelphia  County  (1908) 
220  Pa.  100,  68  Atl.  676,  15  L.  R.  A.  N.  S.  108.  With  opinion  in  case  last 
cited  compare  Hadley,  Railroad  Rate  Regulation,  7  The  Brief,  175,  184; 
Robinson,  The  Legal,  Economic  and  Accounting  Principles  Involved  in  the 
Judicial  Determination  of  Railway  Passenger  Rates,  16  Yale  Review,  355, 
360. 

174  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct. 
565,  43  L.  ed.  858.  See  also  State  v.  Bonneval  (1911)  128  La.  902,  55  So. 
569;  Commonwealth  v.  Atlantic  C.  L.  R.  Co.  (1906)  106  Va.  61,  55  S.  E. 
572,  7  L.  R.  A.  N.  S.  1086,  and  cases  cited  in  note  in  7  L.  R.  A.  N.  S.;  State 
v.  Great  N.  Ry.  Co.  (1908)  17  N.  D.  370,  116  N.  W.  89;  Bruce,  State 
Regulation  of  Railroad  Rates  and  Charges,  62  Cent.  L.  J.  458,  464;  Wy- 
man,  Business  Policies  Inconsistent  with  Public  Employment,  20  Harv. 
L.  Rev.  511,  514;  note  in  14  Harv.  L.  Rev.  at  143.  As  pointed  out  in 
Wisconsin,  M.  &  P.  Ry.  Co.  v.  Jacobson  (1900)  179  U.  S.  287,  21  Sup.  Ct. 
115,  45  L.  ed.  1194,  the  essential  question  in  L.  S.  &  IL  S.  Ry.  Co.  v.  Smith 
was  as  to  the  power  of  the  state  to  establish  a  lower  charge  for  mileage 
books  than  for  ordinary  tickets.  It  was  not  shown  that  the  lower  rate 
would  have  been  inadequate  if  applied  to  all  passenger  traflfic.  (This  point 
was  urged,  and  the  court  replied  that  the  fact  that  the  state  had  not  fixed 
such  rates  for  all  passenger  traffic  aflforded  a  presiunption  that  a  law  fixing 
such  rates  would  be  invalid.  In  other  words,  constitutional  limitations 
are  presumed  to  be  the  only  deterrents  to  legislative  action.  Is  this  true?) 
It  did  not  appear  that  the  rates  would  have  been  inadequate  if  applied  to  all 
passenger  traflfic.  But  the  law  did  not  go  so  far.  The  lower  rate  applied 
only  to  mileage  tickets.    Compare  notes  178,  179,  infra. 

175  See  also  State  v.  Sutton  (1912)   84  N.  J.  L.,  84  Atl.  1057. 


328  JUST  COJCPENSATION. 

no  power  to  declare  legislation  invalid  simply  upon  the 
ground  that  it  is  unwise  or  unjust/ ^^  such  an  objection 
cannot  properly  be  considered."^ 

Moreover,  the  decision  is  inconsistent  with  that  in  the 
later  case  of  Willcox  v.  Consolidated  Gas  Co./"^^  in  which 
the  opinion  was  by  the  author  of  the  opinion  in  the  mile- 
age book  case  and  in  which  it  was  held  that  a  gas  com- 
pany may  be  required  to  sell  gas  to  a  particular  whole- 
sale customer  at  a  lower  rate  than  is  charged  to  the  gen- 
eral public."^ 

176  See  sec.  95,  supra. 

177  With  the  comments  of  the  court  in  173  U.  S.  at  693,  19  Sup.  Ct.  at 
569,  43  L.  ed.  at  863,  on  fixing  period  within  which  tickets  should  be  usable, 
see  also  Lochner  v.  New  York  (1905)  198  U.  S.  45,  62,  25  Sup.  Ct.  539,  545, 
49  L.  ed.  937;  but  compare  criticism  in  Freund,  Limitations  of  Hours  of 
Labor,  17  Green  Bag,  411,  415;  and  decisions  in  Bacon  v.  Walker  (1907) 
204  U.  S.  311,  317,  27  Sup.  Ct.  289,  291,  51  L.  ed.  499,  Hatch  v.  Reardon 
(1907)  204  U.  S.  152,  159,  27  Sup.  Ct.  188,  190;  and  also  Southwestern 
Oil  Co.  V.  Texas  (1910)  217  U.  S.  114,  126,  30  Sup.  Ct.  496,  500,  54  L. 
ed.  688. 

178  (1912)  212  U.  S.  19,  54,  29  Sup.  Ct.  192,  200,  201,  53  L.  ed.  382;  see 
note  161,  supra. 

179  Compare  also  note  in  14  Harv.  L.  Rev.  at  143 ;  Interstate  Com.  Comn. 
V.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  30  Sup.  Ct.  651,  54  L. 
ed.  946 ;  the  language  of  Holmes  and  Harlan,  JJ.,  in  Interstate  C.  S.  Ry.  Co. 
V.  Commonwealth  (1907)  207  U.  S.  79,  28  Sup.  Ct.  26,  52  L.  ed.  Ill,  affirm- 
ing Commonwealth  v.  Interstate  C.  S.  Ry.  Co.  (1905)  187  Mass.  436,  73 
N.  E.  530,  11  L.  R.  A.  N.  S.  973;  and  Fitzmaurice  v.  New  Y.,  N.  H.  &  H.  R. 
Co.  (1906)  192  Mass.  159,  78  N.  E.  418,  6  L.  R.  A.  N.  S.  1146;  Puget  S.  E. 
Ry.  V.  Railroad  Comn.  (1911)  65  Wash.  75,  117  Pac.  739;  Interstate  Com. 
Comn.  V.  Baltimore  &  0.  R.  Co.  (1892)  145  U.  S.  263,  276,  12  Sup.  Ct.  844, 
848,  36  L.  ed.  699;  Whiting,  Commutation  Tickets  and  Rate  Regulation,  S 
Col.  L.  Rev.  636;  Freund,  Police  Power,  pp.  406,  407,  410,  note;  Judson,  In- 
terstate Commerce,  2d  ed.,  sec.  203;  and  cases  cited  in  Wyman,  Public  Ser- 
vice Corporations,  p.  950. 


CHAPTER  Vn. 

THE  IMPAIRMENT  OF  CONTRACTS. 

INTRODUCTORY. 

188.  The  clause  stated. 

"LAWS"  FORBIDDEN. 

189.  In  general. 

190.  Rule  as  to  judicial  decisions. 

191.  CONTRACTS  PROTECTED. 

INTERPRETATION  OF  CONTRACTS. 

192.  Contractual  limitations  upon  governmental  power  over  rates. 

193.  Governmental  power  not  limited  by  mere  implication. 

194.  Parties  exempted. 

LIMITATIONS  UPON  POWER  TO  CONTRACT. 

195.  In  general. 

196.  Contracts  with  municipalities. 

197.  Contracts  between  state  and  carrier. 

198.  Contracts  between  carriers  or  between  carrier  and  patron. 

199.  POWER  TO  ALTER,  AMEND  OR  REPEAL. 

INTRODUCTORY. 

The  clause  stated. 

188.  The  Constitution  in  Article  I,  section  10,  declares 
that  '^No  state  shall  ....  pass  any  ....  law  impair- 
ing the  obligation  of  contracts. ' ' 

"LAWS"   FORBIDDEN. 

In  general. 

189.  The  provision  obviously  does  not  relate  to  federal 
legislation.^    We  have  already  ^  noted  cases  in  which  the 

1  Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert   (1912)    224  U.  S.  603,  613, 

329 


330  THE  IMPAIRMENT  OF  CONTRACTS. 

Interstate  Commerce  Act  had  impaired  the  obligation  of 
contracts  between  railroads  and  their  patrons  and  in 
which  the  Act  was  enforced  by  the  Supreme  Court.  But 
the  provision  does  forbid  the  states  by  law  to  deprive 
parties  of  the  legal  right  of  enforcing  their  contracts  or 
obtaining  compensation  for  breaches  thereof.  This  is  true 
whether  the  law-making  is  by  means  of  the  state  consti- 
tution,^ or  an  act  of  the  legislature,"*  or  an  act  of  an  ad- 
ministrative authority  of  the  state  to  which  power  has 
been  delegated  by  the  legislature,'^  or  an  act  of  a  munici- 
pality ^  or  other  extrinsic  authority  '^  to  which  the  state 

614,  32  Sup.  Ct.  589,  592,  56  L.  ed.  911;  Hanover  Nat.  Bank  v.  Moyses 
(1902)  186  U.  S.  181,  188,  22  Sup.  Ct.  857,  860,  46  L.  ed.  1113;  Sturges  v. 
Crowninshield  (1819)  4  Wheat.  122,  194,  4  L.  ed.  529.  See  also  sec.  53, 
supra;  note  2  in  Chapter  5,  supra. 

2  Sec.  18,  supra. 

3  Houston  &  T.  C.  Ry.  Co.  v.  Texas  (1898)  170  U.  S.  243,  18  Sup.  Ct.  610, 
42  L.  ed.  1023;  Fisk  v.  Jefferson  Police  Jury  (1885)  116  U.  S.  131,  6  Sup. 
Ct.  329,  29  L.  ed.  587;  New  O.  G.  Co.  v.  Louisiana  L.  Co.  (1885)  115  U.  S. 
650,  6  Sup.  Ct.  252,  29  L.  ed.  516;  Keith  v.  Clark  (1878)  97  U.  S.  454,  24 
L.  ed.  1071;  Edwards  v.  Kearzey  (1877)  96  U.  S.  595,  24  L.  ed.  793;  Pacific 
R.  Co.  V.  Maguire  (1873)  20  Wall.  36,  22  L.  ed.  282;  Gunn  v.  Barry  (1872) 
15  Wall.  610,  21  L.  ed.  212;  Delmas  v.  Insurance  Co.  (1871)  14  Wall.  661, 
20  L.  ed.  757;  White  v.  Hart  (1871)  13  Wall.  646,  20  L.  ed.  685;  see  also 
County  of  Moultrie  v.  Rockingham  T.  C.  S.  Bank  (1875)  92  U.  S.  631,  23 
L.  ed.  631;  Railroad  Co.  v.  McClure  (1870)  10  Wall.  511,  515,  19  L.  ed. 
997;  Dodge  v.  Woolsey  (1855)  18  How.  331,  15  L.  ed.  401. 

*See,  e.  g.,  Louisiana  v.  New  Orleans  (1909)  215  U.  S.  170,  30  Sup.  Ct. 
40,  54  L.  ed.  144;  American  S.  &  R.  Co.  v.  Colorado  (1907)  204  U.  S.  103, 
27  Sup.  Ct.  198,  51  L.  ed.  393;  Dartmouth  College  v.  Woodward  (1819)  4 
Wheat.  518,  4  L.  ed.  629;  Terrett  v.  Taylor  (1815)  9  Cranch,  43,  3  L.  ed. 
650;  Fletcher  v.  Peck  (1810)  6  Cranch,  87,  3  L.  ed.  162. 

5  See  Grand  T.  W.  Ry.  Co.  v.  Railroad  Comn.  of  Indiana  (1911)  221  U. 
S.  400,  403,  31  Sup.  Ct.  537,  55  L.  ed.  786,  and  cases  there  cited. 

6  Boise  A.  H.  &  C.  W.  Co.  v.  Boise  City  (1913)  230  U.  S.  84,  33  Sup.  Ct. 
997,  57  L.  ed.  1400;  Owensboro  v.  Cumberland  T.  &  T.  Co.  (1913)  230  U. 
S.  58,  33  Sup.  Ct.  988,  57  L.  ed.  1389;  Grand  T.  W.  Ry.  Co.  v.  South  Bend 
(1913)  227  U.  S.  544,  33  Sup.  Ct.  303,  57  L.  ed.  633;  Louisville  v.  Cum- 
berland T.  &  T.  Co.  (1912)  224  U.  S.  649,  32  Sup.  Ct.  572,  56  L.  ed.  934; 
Minneapolis  v,  Minneapolis  S.  Ry.  Co.  (1910)  215  U.  S.  417,  30  Sup.  Ct, 
118,  54  L.  ed.  259;  Vicksburg  v.  Vicksburg  W.  Co.  (1906)  202  U.  S.  453,  26 


"LAWS"  FORBIDDEN.  331 

by  its  enforcement  gives  the  force  of  a  law.  It  must  be 
noted,  however,  that  a  "law"  to  violate  the  provision 
must  have  been  enacted  after  the  making  of  the  contract.^ 

Sup.  Ct.  660,  50  L.  ed.  1102;  Cleveland  v.  Cleveland  E.  Ry.  Co.  (1906)  201 
U.  S.  529,  26  Sup.  Ct.  513,  50  L.  ed.  854;  Cleveland  v.  Cleveland  C.  Ry.  Co. 

(1904)  194  U.  S.  517,  24  Sup.  Ct.  756,  48  L.  ed.  1102;  Detroit  v.  Detroit  C. 
S.  Ry.  Co.  (1902)  184  U.  S.  368,  22  Sup.  Ct.  410,  46  L.  ed.  592;  Los  An- 
geles v.  Los  Angeles  C.  W.  Co.  (1900)  177  U.  S.  558,  20  Sup.  Ct.  736,  44 
L.  ed.  886;  Walla  Walla  v.  Walla  Walla  W.  Co.  (1898)  172  U.  S.  1,  19  Sup. 
Ct.  77,  43  L.  ed.  341;  Cumberland  T.  &  T.  Co.  v.  Memphis  (1912)  198  Fed. 
955.  See  also  Northern  P.  Ry.  Co.  v.  Duluth  (190S)  208  U.  S.  583,  28  Sup. 
Ct.  341,  52  L.  ed.  630;  Mercantile  T.  &  D.  Co.  v.  Columbus  (1906)  203  U.  S. 
311,  321,  27  Sup.  Ct.  83,  85,  51  L.  ed.  198;  St.  Paul  G.  L.  Co.  v.  St.  Paul 

(1901)  181  U.  S.  142,  21  Sup.  Ct.  575,  45  L.  ed.  788;  City  Ry.  Co.  v.  Citi- 
zens' S.  Ry.  Co.  (1897)  166  U.  S.  557,  17  Sup.  Ct.  653,  41  L.  ed.  1114; 
Home  T.  &  T.  Co.  v.  Los  Angeles  (1913)  227  U.  S.  278,  33  Sup.  Ct.  312,  57 
L.  ed.  510;  Portland  Ry.,  L.  &  P.  Co.  v.  Portland  (1912)  201  Fed.  119. 
Compare  Des  Moines  v.  Des  Moines  C.  Ry.  Co.  (1909)  214  U.  S.  179,  29  Sup. 
Ct.  553,  53  L.  ed.  958.  A  simple  breach  of  a  contract  by  a  municipality 
which  is  not  based  on  legislation  does  not  amount  to  an  act  impairing  the 
obligation  of  the  contract:  Shawnee  S.  &  D.  Co.  v.  Stearns  (1911)  220  U. 
S.  462,  31  Sup.  Ct.  452,  55  L.  ed.  544;  Dawson  v.  Columbia  A.  S.  F.,  S.  D.,  T.  & 
T.  Co.  (1905)  197  U.  S.  178,  25  Sup.  Ct.  420,  49  L.  ed.  713.  See  also  Ham- 
ilton G.  L.  &  C.  Co.  V.  Hamilton  City  (1892)  146  U.  S.  258,  266,  13  Sup.  Ct. 
90,  92,  36  L.  ed.  963. 

7  Stevens  v.  Griffith  (1884)  111  U.  S.  48,  4  Sup.  Ct.  283,  28  L.  ed.  348. 
See  also  Ford  v.  Surget  (1878)  97  U.  S.  594,  24  L.  ed.  1018;  Williams  v. 
Bruffy  (1877)  96  U.  S.  176,  24  L.  ed.  716. 

8  Chicago,  B.  &  Q.  R.  Co.  v.  Cram  (1913)  228  U.  S.  70,  85,  33  Sup.  Ct. 
437,  440,  57  L.  ed.  734;  Abilene  Nat.  Bk.  v.  Dolley  (1913)  228  U.  S.  1,  5, 
33  Sup.  Ct.  409,  410,  57  L.  ed.  707;  National  M.  B.  &  L.  Assn.  v.  Brahan 
(1904)   193  U.  S.  635,  647,  24  Sup.  Ct.  532,  535,  48  L.  ed.  823;  Oshkosh  W. 

Co.  V.  Oshkosh  (1903)  187  U.  S.  437,  446,  23  Sup.  Ct.  234,  237,  47  L.  ed.  249; 
New  O.  W.  Co.  V.  Louisiana  (1902)  185  U.  S.  336,  350,  352,  22  Sup.  Ct. 
691,  696,  697,  46  L.  ed.  936;  Pinney  v.  Nelson  (1901)  183  U.  S.  144,  147, 
22  Sup.  Ct.  52,  54,  46  L.  ed.  125;  Bier  v.  McGehee  (1893)  148  U.  S.  137, 
140,  13  Sup.  Ct.  580,  581,  37  L.  ed.  397;  Brown  v.  Smart  (1892)  145  U.  S. 
454,  458,  12  Sup.  Ct.  958,  959,  36  L.  ed.  773;  Denny  v.  Bennett  (1888)  128 
U.  S.  489,  9  Sup.  Ct.  134,  32  L.  ed.  491;  Lehigh  W.  Co.  v.  Easton  (1887) 
121  U.  S.  388,  391,  7  Sup.  Ct.  916,  918,  30  L.  ed.  1059.  See  also  ShawTiee 
S.  &  D.  Co.  V.  Stearns  (1911)  220  U.  S.  462,  471,  31  Sup.  Ct.  452,  45.5,  65 
L.  ed.  544;  San  Antonio  T.  Co.  v.  Altgelt  (1906)  200  U.  S.  304,  26  Sup.  Ct. 
261,  50  L.  ed.  491;  Blackstone  v.  Miller  (1903)  188  U.  S.  189,  207,  23  Sup. 
Ct.  277,  279,  47  L.  ed.  439;  Hanford  v.  Daviea  (1896)   163  U.  S.  273,  278,  16 


332  THE  IMPAIRMENT  OF  CONTRACTS. 

Rule  as  to  judicial  decisions. 

190.  An  erroneous  decision  by  a  state  court  as  to  the 
existence  or  the  validity  of  a  contract  does  not  in  itself 
amount  to  a  law  impairing  its  obligation.^  The  decision 
will  not  be  reviewed  by  the  Supreme  Court  unless  it  is 
claimed  that  the  state  has  impaired  the  obligation  of  the 
contract  by  some  law.^*^  In  that  case  the  Supreme  Court 
will  re-examine  a  decision  by  the  state  court  that  the  law 

Sup.  Ct.  1051,  1053,  41  L.  ed.  157;  Planters'  I.  Co.  v.  Tennessee  (1896)  161 
U.  S.  193,  16  Sup.  Ct.  466,  40  L.  ed.  667;  Denver  v.  New  York  T.  Co.  (1913) 
229  U.  S.  123,  33  Sup.  Ct.  657,  57  L.  ed.  1101;  Ettor  v.  Tacoma  (1913)  228 
U.  S.  148,  33  Sup.  Ct.  428,  57  L.  ed.  773. 

9  As  was  said  in  Cross  L.  S.  &  F.  Club  v.  Louisiana  (1912)  224  U.  S.  632, 
638-639,  32  Sup.  Ct.  577,  579-580,  56  L.  ed.  924,  "This  clause,  as  its  terms 
disclose,  is  not  directed  against  all  impairment  of  contract  obligations,  but 
only  against  such  as  results  from  a  subsequent  exertion  of  the  legislative 
power  of  tlie  state.  It  does  not  reach  mere  errors  committed  by  a  state 
court  when  passing  upon  the  validity  or  effect  of  a  contract  under  the  laws 
in  existence  when  it  was  made.  And  so,  while  such  errors  may  operate  to 
impair  the  obligation  of  the  contract,  they  do  not  give  rise  to  a  federal 
question.  But  when  the  state  court,  either  expressly  or  by  necessary  impli- 
cation, gives  effect  to  a  subsequent  law  of  the  state  whereby  the  obligation 
of  the  contract  is  alleged  to  be  impaired,  a  federal  question  is  presented. 
In  such  a  case  it  becomes  our  duty  to  take  jurisdiction  and  to  determine 
the  existence  and  validity  of  the  contract,  what  obligations  arose  from  it, 
and  whether  they  are  impaired  by  the  subsequent  law.  But  if  there  be  no 
such  law,  or  if  no  effect  be  given  to  it  by  the  state  court,  we  cannot  take 
jurisdiction,  no  matter  how  earnestly  it  may  be  insisted  that  that  court 
erred  in  its  conclusion  respecting  the  validity  or  effect  of  the  contract;  and 
this  is  true  even  where  it  is  asserted,  as  it  is  here,  that  the  judgment  is  not 
in  accord  with  prior  decisions  on  the  faith  of  which  the  rights  in  question 
were  acquired."  See  also  the  cases  cited  there  and  in  Patterson,  The 
United  States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  140;  Mobile, 
J.  &  K.  C.  R.  Co.  V.  Mississippi  (1908)  210  U.  S.  187,  205,  28  Sup.  Ct.  650, 
656,  657,  52  L.  ed.  1016. 

10  Willoughby  on  the  Constitution,  p.  917,  points  out  that  "The  Supreme 
Court  has  shown  a  strong  disposition  to  find,  when  possible,  an  impairing 
statute,  and  thus  to  justifj^  its  appellate  jurisdiction  for  the  protection  of 
contracts  in  cases  originating  in  state  courts."  See  also  Dodd,  Impairment 
of  the  Obligation  of  Contract  by  State  Judicial  Decisions,  4  111.  L.  Rev. 
155,  327,  332. 


"LAWS"  FORBIDDEN.  333 

has  not  impaired  the  contract  or  that  there  has  been  no 
contract  to  be  impaired.^^ 

Where,  however,  a  state  court  construes  a  state  statute 
that  construction  becomes,  as  to  contract  rights  acquired 
imder  it,  as  much  a  part  of  the  statute  as  the  text  itself, 
and  in  cases  arising  in  federal  courts  those  courts  will  re- 
fuse to  recognize  the  validity  of  any  subsequent  retroac- 
tive change  of  that  statute  by  construction,^^  But  in 
cases  arising  in  state  courts  the  Supreme  Court  will  not 
on  writ  of  error  decide  whether  the  state  court  has  or  has 
not  interpreted  the  state  law  in  accordance  with  previous 
interpretations  by  the  state  court.^^ 

11  Grand  T.  W.  Ry.  Co.  v.  South  Bend  (1913)   227  U.  S.  544,  33  Sup.  Ct. 
303,  57  L.  ed.   633;   Kier  v.   Lowrey    (1905)    199  U.   S,  233,   26   Sup.   Ct. 
27,  50  L.  ed.  167;  McCullough  v.  Virginia   (1898)    172  U.  S.   102,  19  Sup. 
Ct.  134,  43  L.  ed.  382;  Mobile  &  0.  R.  Co.  v.  Tennessee   (1894)    153  U.  S. 
486,  14  Sup.  Ct.  986,  38  L.  ed.  793;  JeflFerson  Branch  Bank  v.  Skelly  (1861) 
1  Black,  436,  17  L.  ed.  173;  State  Bank  v.  Knopp   (1853)    16  How.  369,  14 
L.  ed.  977;  Louisiana  ex  rel.  Hubert  v.  New  Orleans  (1909)   215  U.  S.  170, 
30  Sup.  Ct.  40,  54  L.  ed.  144;  Muhlker  v.  New  Y.  &  H.  R.  Co.   (1905)    197 
U.  S.  544,  570,  25  Sup.  Ct.  522,  528,  49  L.  ed.  872.     See  also  J.  W.  Perry  Co. 
V.  Norfolk   (1911)   220  U.  S.  472,  31  Sup.  Ct.  465,  55  L.  ed.  548;  Northern 
P.  Ry.  Co.  V.  Duluth  (1908)   208  U.  S.  583,  28  Sup.  Ct.  341,  52  L.  ed.  630 
Sullivan  v.  Texas    (1908)    207  U.  S.  416,  28  Sup.  Ct.  215,  52  L.  ed.  274 
Wilson  V.  Standefer   (1902)    184  U.  S.  399,  22  Sup.  Ct.  384,  46  L.  ed.  612 
and  cases  cited  in  Patterson,  The  United  States  and  the  States  Under  the 
Constitution,  2d  ed.,  p.  141. 

12  Wilkes  County  v.  Coler  (1901)  180  U.  S.  506,  21  Sup.  Ct.  458,  45  L.  ed. 
642;  Loeb  v.  Columbia  Township  Trustees  (1900)  179  U.  S.  472,  492,  21 
Sup.  Ct.  174,  182,  45  L.  ed.  280;  Douglass  v.  County  of  Pike  (1879)  101  U. 
S.  677,  25  L.  ed.  968;  City  v.  Lamson  (1869)  9  Wall.  477,  19  L.  ed.  725; 
Chicago  V.  Sheldon  (1869)  9  Wall.  50,  19  L.  ed.  594;  Gelpcke  v.  Dubuque 
(1863)  1  Wall.  175,  206,  17  L.  ed.  520.  See  also  Kuhn  v.  Fairmount  C. 
Co.  (1910)  215  U.  S.  349,  30  Sup.  Ct.  140,  54  L.  ed.  228;  Havemeyer  v. 
Iowa  County  (1865)  3  Wall.  294,  303,  18  L.  ed.  38.  The  principles  in- 
volved in  the  above  cases  are  discussed  in  Dodd,  Impairment  of  the  Obli- 
gation of  Contract  by  State  Judicial  Decisions,  4  111.  L.  Rev.  155,  327, 
where  a  bibliography  on  the  subject  is  given  on  p.  155;  Willoughby  on  the 
Constitution,  p.  920  et  seq. ;  White,  Some  Recent  Criticisms  of  Gelpcke  v. 
Dubuque,  38  Am.  L.  Reg.  N.  S.  473,  529,  593,  657;  16  L.  R.  A.  646. 

13  National  M.  B.  &  L.  Assn.  v.  Brahan    (1904)    193  U.  S.  635,  647,  24 


334  THE  IMPAIRMENT  OF  CONTRACTS. 

CONTRACTS  PROTECTED. 

191.  The  provision  which  we  are  considering  protects 
against  impairment  of  obligation  both  executory  ^^  and 
executed  ^^  contracts.  It  protects  not  only  contracts  be- 
tween private  individuals  but  also  contracts  to  which  one 

Sup.  Ct.  532,  535,  48  L.  ed.  823;  Bacon  v.  Texas  (1896)  163  U.  S.  207,  220- 
222,  16  Sup.  Ct.  1023,  1028-1029,  41  L.  ed.  132.  See  also  Cross  L.  S.  &  F. 
Club  V.  Louisiana  (1912)  224  U.  S.  632,  639,  32  Sup.  Ct.  577,  580,  56  L.  ed. 
924;  Central  L.  Co.  v.  Laidley  (1895)  159  U.  S.  103,  111,  112,  16  Sup.  Ct. 
80,  82,  40  L.  ed.  91;  Dodd,  Impairment  of  the  Obligation  of  Contract  by 
State  Judicial  Decisions,  4  111.  L.  Rev.  155,  327;  White,  Some  Recent  Criti- 
cisms of  Gelpcke  v.  Dubuque,  38  Am.  L.  Reg.  N.  S.  473,  529,  593,  657, 
especially  at  660  et  seq. ;  Willoughby  on  the  Constitution,  p.  916  et  seq. ; 
Crigler  v.  Shepler  (1909)  79  Kan.  834,  101  Fac.  619,  23  L.  R.  A.  N.  S.  500, 
and  note  in  23  L.  R.  A.  N.  S. 

14 E.  g.,  cases  in  note  6,  supra;  and  Louisiana  v.  New  Orleans  (1909) 
215  U.  S.  170,  30  Sup.  Ct.  40,  54  L.  ed.  144;  New  O.  G.  Co.  v.  Louisiana  L. 
Co.  (1885)  115  U.  S.  650,  6  Sup.  Ct.  252,  29  L.  ed.  516;  Edwards  v.  Kear- 
zey  (1877)  96  U.  S.  595,  24  L.  ed.  793;  County  of  Moultrie  v.  Rockingham 
T.  C.  S.  Bank  (1875)  92  U.  S.  631,  23  L.  ed.  631;  State  Tax  on  Foreign- 
held  Bonds  (1872)  15  Wall.  300,  21  L.  ed.  179;  Delmas  v.  Insurance  Co. 
(1871)  14  Wall.  661,  20  L.  ed.  757;  Ogden  v.  Saunders  (1827)  12  Wheat. 
213,  6  L.  ed.  606;  McMillan  v.  McNeill  (1819)  4  Wheat.  209,  4  L.  ed.  552; 
Sturges  V.  Crowninshield   (1819)   4  Wheat.  122,  4  L.  ed.  529. 

15  E.  g.,  Houston  &  T.  C.  Ry.  Co.  v.  Texas  (1898)  170  U.  S.  243,  18  Sup. 
Ct.  610,  42  L.  ed.  1023;  Mobile  v.  Watson  (1886)  116  U.  S.  289,  6  Sup.  Ct. 
398,  29  L.  ed.  620;  Louisiana  v.  Police  Jury  (1884)  111  U.  S.  716,  4  Sup. 
Ct.  648,  28  L.  ed.  574;  Ralls  County  Court  v.  United  States  (1881)  105  U. 
S.  733,  26  L.  ed.  1220;  Louisiana  v.  Pilsbury  (1881)  105  U.  S.  278,  26  L.  ed. 
1090;  Wolff  V.  New  Orleans  (1880)  103  U.  S.  358,  26  L.  ed.  395;  Memphis 
V.  United  States  (1877)  97  U.  S.  293,  24  L.  ed.  920;  Blount  v.  Windley 
(1877)  95  U.  S.  173,  24  L.  ed.  424;  Davis  v.  Gray  (1872)  16  Wall.  203,  21 
L.  ed.  447;  Terrett  v.  Tjiylor  (1815)  9  Cranch,  43,  3  L.  ed.  650;  Fletcher  v. 
Peck  (1810)  6  Cranch,  87,  3  L.  ed.  162. 

16  American  S.  &  R.  Co.  v.  Colorado  (1907)  204  U.  S.  103,  27  Sup.  Ct. 
198,  51  L.  ed.  393;  McCullough  v.  Virginia  (1898)  172  U.  S.  102,  19  Sup. 
Ct.  134,  43  L.  ed.  382;  Mobile  &  0.  R.  Co.  v.  Tennessee  (1894)  153  U.  S. 
486,  14  Sup.  Ct.  986,  38  L.  ed.  793;  McGahey  v.  Virginia  (1890)  135  U.  S. 
662,  10  Sup.  Ct.  972,  34  L.  ed.  304;  Poindexter  v.  Greenhow  (1885)  114  U. 
S.  270,  5  Sup.  Ct.  903,  29  L.  ed.  185;  Hall  v.  Wisconsin  (1880)  103  U.  S. 
5,  26  L.  ed.  302;  Green  v.  Biddle  (1823)  8  Wheat.  1,  5  L.  ed.  547;  Dart- 
mouth College  V.  Woodward  (1819)  4  Wheat.  51S,  4  L.  ed.  629;  Terrett  v. 
Taylor   (1815)   9  Cranch,  43,  3  L.  ed.  650;  New  Jersey  v.  Wilson   (1812) 


INTERPKETATION  OF  CONTRACTS.  335 

of  the  parties  is  the  state  itself  ^^  or  some  local  govem- 
ment  acting  under  authority  from  the  state.^"'' 

INTERPRETATION  OF  CONTRACTS. 

CJontractual  limitations  upon  governmental  power  over 
rates. 

192.  It  is  clearly  established  that  some  exemptions  from 
rate  regulation  may  be  secured  by  a  public  service  cor- 
poration by  contract  with  the  state  or  with  a  local  gov- 
ernment which  has  received  from  the  state  authority  to 
enter  into  such  a  contract.  A  number  of  such  contracts, 
made  in  express  terms,  have  been  sustained  and  enforced 
by  the  Supreme  Court.^^    For  instance,  where,  under  a 

7  Cranch,  164,  3  L.  ed.  303;  Fletcher  v.  Peck  (1810)  6  Cranch,  87,  3  L.  ed. 
162;  Woodruff  v.  Trapnall  (1850)   10  How.  190,  207,  13  L.  ed.  383. 

17  See  cases  in  note  6,  supra,  18,  infra;  and  Scotland  County  Court  t. 
United  States  (1891)  140  U.  S.  41,  11  Sup.  Ct.  697,  35  L.  ed.  363;  Seibert 
V.  Lewis  (1887)  122  U.  S.  284,  7  Sup.  Ct.  1190,  30  L.  ed.  1161;  Mobile  v. 
Watson  (1886)  116  U.  S.  289,  6  Sup.  Ct.  398,  29  L.  ed.  620;  Fisk  v.  Jef- 
ferson Police  Jury  (1885)  116  U.  S.  131,  6  Sup.  Ct.  329,  29  L.  ed.  587; 
Louisiana  v.  Police  Jury  (1884)  111  U.S.  716,  4  Sup.  Ct.  648,  28  L.ed.  574; 
Ralls  County  Court  v.  United  States  (1881)  105  U.  S.  733,  26  L.  ed.  1220; 
Louisiana  v.  Pilsbury  (1881)  105  U.  S.  278,  26  L.  ed.  1090;  Wolff  v.  New 
Orleans  (1880)  103  U.  S.  358,  26  L.  ed.  395;  Memphis  v.  United  States 
(1877)  97  U.  S.  293,  24  L.  ed.  920;  Murray  v.  Charleston  (1877)  96  U.  S. 
432,  24  L.  ed.  760;  County  of  Moultrie  v.  Rockingham  T.  C.  S.  Bank  (1875) 
92  U.  S.  631,  23  L.  ed.  631. 

18 Minneapolis  v.  Minneapolis  S.  Ry.  Co.  (1910)  215  U.  S.  417,  30  Sup. 
Ct.  118,  54  L.  ed.  259;  Vicksburg  v.  Vicksburg  W.  Co.  (1907)  206  U.  S.  496, 
27  Sup.  Ct.  762,  51  L.  ed.  1155;  Cleveland  v.  Cleveland  E.  Ry.  Co.  (1906) 
201  U.  S.  529,  26  Sup.  Ct.  513,  50  L.  ed.  854;  Cleveland  v.  Cleveland  C.  Ry. 
Co.  (1904)  194  U.  S.  517,  24  Sup.  Ct.  756,  48  L.  ed.  1102;  Cleveland  v. 
Cleveland  E.  Ry.  Co.  (1904)  194  U.  S.  538,  24  Sup.  Ct.  764,  48  L.  ed.  1109; 
Detroit  V.  Detroit  C.  S.  Ry.  Co.  (1902)  184  U.  S.  368,  22  Sup.  Ct.  410,  46 
L.  ed.  592;  Los  Angeles  v.  Los  Angeles  C.  W.  Co.  (1900)  177  U.  S.  558,  20 
Sup.  Ct.  736,  44  L.  ed.  886.  See  also  Owensboro  v.  Cumberland  T.  &  T.  Co. 
(1913)  230  U.  S.  58,  33  Sup.  Ct.  988,  57  L.  ed.  1389;  Boise  A.  H.  &  C.  W. 
Co.  V.  Boise  City  (1913)  230  U.  S.  84,  33  Sup.  Ct.  997,  57  L.  ed.  1400; 
Grand  T.  W.  Ry.  Co.  v.  South  Bend  (1913)  227  U.  S.  544,  33  Sup.  Ct.  303, 


336  THE  IMPAIRMENT  OF  CONTRACTS. 

statute  expressly  directing  that  street  railway  fares  should 
be  fixed  by  agreement  between  the  city  and  the  company, 
an  ordinance  provided  that  the  fares  should  not  exceed 
five  cents,  the  court  held  that  the  city  could  not  afterwards 
impose  a  lower  fare,  although  it  had  reserved  the  right  to 
make  further  rules,  ordinances  and  regulations,  and  that 
a  constitutional  reservation  to  the  legislature  of  the  power 
to  alter,  amend  or  repeal  its  contracts  did  not  grant  such 
power  to  the  city.^^  And  where  a  city  leased  its  water 
works  in  consideration  of  a  fixed  rental  and  the  furnishing 
of  water  for  public  uses  without  charge,  reserving  to  itself 
the  right  to  regulate  water  rates,  with  the  proviso  that 
they  should  not  be  reduced  below  those  then  charged  by 
the  lessees,  a  subsequent  ordinance  further  reducing  the 
rates  was  declared  invalid.-*^ 

57  L.  ed.  633;  Gulf  &  S.  I.  R.  Co.  v.  Adams  (1907)  90  Miss.  559,  45  So. 
91;  Omaha  W.  Co.  v.  Omaha  (1906)  147  Fed.  1,  12  L.  R.  A.  N.  S.  736; 
note  in  23  Harv.  L.  Rev.  388. 

19  Detroit  v.  Detroit  C.  S.  Ry.  Co.  (1902)  184  U.  S.  368,  22  Sup.  Ct.  410, 
46  L.  ed.  592. 

20  Los  Angeles  v.  Los  Angeles  C.  W.  Co.  (1900)  177  U.  S.  558,  20  Sup. 
Ct.  736,  44  L.  ed.  886. — And  it  has  been  held  by  state  courts  that  where  a 
state  had  granted  to  a  railway  company  the  right  to  regulate  its  charges 
until  a  date  named,  it  could  not  before  that  date  prohibit  the  company 
from  making  a  greater  charge  for  a  shorter  than  for  a  longer  haul  which 
included  the  shorter  route:  Sloan  v.  Pacific  R.  (1875)  61  Mo.  24;  and  that 
where  a  state  had  granted  to  a  railway  company  the  right  to  regulate  its 
charges  "subject  only"  to  a  specified  limitation,  then,  although  other  sec- 
tions of  the  same  act  provided  that  the  company  should  charge  such  sums 
as  should  be  "lawfully"  established,  and  that  the  regulations  of  the  com- 
pany should  not  be  contrary  to  the  laws  of  the  state,  that  state  could  not 
afterwards  impose  further  limitations  upon  the  rates  charged:  Pingree  v. 
Michigan  C.  R.  Co.  (1898)  118  Mich.  314,  76  N.  W.  635,  53  L.  R.  A,  274. 
See  also  note  in  21  A.  &  E.  R.  Cas.  50;  Rushville  v.  Rushville  N.  G.  Co. 
(1905)  164  Ind.  162,  73  N.  E.  87;  Mississippi  R.  Comn.  v.  Gulf  &  S.  I.  R. 
Co.  (1901)  79  Miss.  750,  29  So.  789.  To  the  contrary  are  Laurel  F.  &  S.  H. 
R.  Co.  V.  West  v.  T.  Co.  (1884)  25  W.  Va.  324;  West  V.  T.  Co.  v.  Sweetzer 
(1885)  25  W.  Va.  434;  and  see  Stanislaus  County  v.  San  J.  &  K.  R.  C.  & 
I.  Co.  (1904)  192  U.  S.  201,  24  Sup.  Ct.  241,  48  L.  ed.  406;  Owensboro  v. 
Owansboro  W.  Co.    (1903)    191  U.  S.  358,  24  Sup.  Ct.  82,  48  L.  ed.  217; 


INTEKPRETATION  OF  CONTRACTS.  337 

Governmental  power  not  limited  by  mere  implication. 

193.  But  a  claim  that  a  state  or  a  local  government  has 
bound  itself  by  contract  not  to  reduce  the  rates  charged 
by  a  public  sei"vice  corporation  will  be  closely  scrutin- 
ized by  the  courts  and  its  validity  will  not  be  recognized 
unless  it  is  clearly  proved.  All  doubts  will  be  resolved  in 
favor  of  the  continuance  of  power  in  the  govemment.^^ 
The  authority  of  the  state  or  local  government  over  rates 
is  not  surrendered  by  mere  implication.  In  chartering  a 
company  the  state  does  not  enter  into  an  implied  con- 
tract that  it  will  not  place  any  limitations  upon  the  rates 

Ruggles  V.  Illinois  (1883)  108  U.  S.  526,  2  Sup.  Ct.  832,  27  L.  ed.  812;  lan- 
guage of  court  in  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503, 
518,  22  Sup.  Ct.  95,  101,  46  L.  ed.  298;  and  sec.  193,  infra. 

21  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  273,  29  Sup.  Ct. 
50,  52,  53  L.  ed.  176,  citing  Metropolitan  S.  Ry.  Co.  v.  New  York  (1905) 
199  U.  S.  1,  25  Sup.  Ct.  705,  50  L.  ed.  65;  Stanislaus  County  v.  San  J.  &  K. 
R.  C.  &  L  Co.  (1904)  192  U.  S.  201,  211,  24  Sup.  Ct.  241,  245,  48  L.  ed. 
406;  Freeport  W.  Co.  v.  Freeport  (1901)  180  U.  S.  587,  599,  611,  21  Sup.  Ct. 
493,  498,  502,  45  L.  ed.  679;  Vicksburg,  S.  &  P.  R.  Co.  v.  Dennis  (1886) 
116  U.  S.  665,  6  Sup.  Ct.  625,  29  L.  ed.  770;  Railroad  Comn.  Cases— Stone 
V.  Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  325,  6  Sup.  Ct.  334,  388, 
1191,  342,  29  L.  ed.  636;  Providence  Bank  v.  Billings  (1830)  4  Pet.  514,  561, 
7  L.  ed.  939;  and  see  Water,  L.  &  G.  Co.  v.  Hutchinson  (1907)  207  U.  S. 
385,  28  Sup.  Ct.  135,  52  L.  ed.  257.  The  court  might  have  cited  also 
Owensboro  W.  Co.  v.  Owensboro  (1903)  191  U.  S.  358,  24  Sup.  Ct.  82,  48 
L.  ed.  217 ;  Knoxville  W.  Co.  v.  Knoxville  ( 1903 )  189  U.  S.  434,  436,  23  Sup. 
Ct.  531,532,  47  L.  ed.  887 ;  Louisville  &  N.  R.  Co.  v.  Kentucky  ( 1902)  183  U. 
S.  503,  517,  22  Sup.  Ct.  95,  101,  46  L.  ed.  298;  Rogers  P.  W.  Co.  v.  Fergus 
(1901)  180  U.  S.  624,  21  Sup.  Ct.  490,  45  L.  ed.  702;  and  cases  cited  in  the 
remainder  of  this  section,  which  deal  with  rates.  And  see  Cedar  R.  G.  L. 
Co.  V.  Cedar  Rapids  (1912)  223  U.  S.  655,  667,  668,  32  Sup.  Ct.  389,  390, 
56  L.  ed.  594,  and  the  following  cases  which,  while  they  do  not  deal  with 
rates  directly,  support  the  same  proposition:  Detroit  U.  Ry.  v.  Detroit 
(1913)  229  U.  S.  39,  33  Sup.  Ct.  697,  57  L.  ed.  1056;  Berryman  v.  Whitman 
College  ( 1912)  222  U.  S.  334,  32  Sup.  Ct.  147,  56  L.  ed.  225;  J.  W.  Perry  Co. 
V.  Norfolk  (1911)  220  U.  S.  472,  480,  31  Sup.  Ct.  465,  468,  55  L.  ed.  548;  St. 
Louis  V.  United  Rys.  Co.  (1908)  210  U.  S.  266,  28  Sup.  Ct.  630,  52  L.  ed. 
1054;  Blair  v.  Chicago  (1906)  201  U.  S.  400,  26  Sup.  Ct.  427,  50  L.  ed.  801; 
Pearsall  v.  Great  N.  Ry.  Co.  (1896)  161  U.  S.  646,  16  Sup.  Ct.  705,  40  L. 
ed.  838. 


338  THE  IMPAIRMENT  OF  CONTRACTS. 

to  be  charged  by  that  company.^^  Even  where  the  char- 
ter in  general  terms  authorizes  the  company  to  regulate 
the  rates,  the  state  may  subsequently  vest  in  a  commis- 
sion the  power  to  limit  those  rates;  ^^  where  a  charter 
vests  that  power  in  a  commission  of  which  some  mem- 
bers are  to  be  appointed  by  the  company,  the  legislature 
may  nevertheless  itself  place  limitations  upon  the 
charges ;  ^^  and  it  has  been  said,  although,  in  view  of  the 
facts  of  the  case,  it  was  not  decided,  that  where  a  water 

22  Louisville  &  N.  R.  Co.  v.  Kentucky  (1902)  183  U.  S.  503,  517,  518,  22 
Sup.  Ct.  95,  101,  46  L.  ed.  298;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota 
(1890)  134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33  L.  ed.  970;  Georgia  R.  &  B. 
Co.  V.  Smith  (1888)  128  U.  S.  174,  9  Sup.  Ct.  47,  32  L.  ed.  377;  Ruggles 
V.  Illinois  (1883)  108  U.  S.  526,  2  Sup.  Ct.  832,  27  L.  ed.  812;  Illinois  C.  R 
Co.  V.  Illinois  (1883)  108  U.  S.  541,  2  Sup.  Ct.  839,  27  L.  ed.  818;  Chicago, 
B.  &  Q.  R.  Co.  V.  Iowa  (1876)  94  U.  S.  155,  24  L.  ed.  94.  See  also  Pearsall 
V.  Great  N.  Ry.  Co.  (1896)  161  U.  S.  646,  16  Sup.  Ct.  705,  40  L.  ed.  838; 
Pennsylvania  R.  Co.  v.  Miller  (1889)  132  U.  S.  75,  84,  10  Sup.  Ct.  34,  37,  33 
L.  ed.  267.— In  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  393, 
14  Sup.  Ct.  1047,  1052,  38  L.  ed.  1014,  the  court  suggested  that  the  mere 
chartering  of  a  railroad  company  by  a  state  of  itself  created  an  implied  con- 
tract which  limited  to  some  extent  the  power  of  the  state  over  the  rates 
which  might  be  charged  by  the  railroad.  The  thought  suggested  in  that 
case,  however,  has  not  been  developed  in  later  cases,  and  as  the  implied 
contract,  if  any,  would  not  secure  to  the  railroad  any  greater  protection 
than  that  which  the  court  has  declared  to  be  secured  to  the  railroad  by 
other  provisions  of  the  Constitution  upon  which  a  number  of  decisions  have 
been  based,  that  supposed  implied  contract  in  the  charter  may  be  safely 
ignored.  With  Reagan  v.  Farmers'  L.  &  T.  Co.  see  Cleveland  G.  &  C.  Co. 
v.  Cleveland  (1891)  71  Fed.  610;  Rushville  v.  Rushville  N.  G.  Co.  (1905) 
164  Ind.  162,  73  N.  E.  87;  Capital  C.  G.  Co.  v.  Des  Moines  (1896)  72  Fed. 
829. 

23  Southern  P.  Co.  v.  Campbell  (1913)  230  U.  S.  537,  33  Sup.  Ct.  1027, 
57  L.  ed.  1610;  Stone  v.  Farmers'  L.  &  T.  Co.  (1886)  116  U.  S.  307,  6  Sup. 
Ct.  334,  388,  1191,  29  L.  ed.  636;  Stone  v.  Illinois  C.  R.  Co.  (1886)  116  U. 
S.  347,  6  Sup.  Ct.  348,  388,  1191,  29  L.  ed.  650;  Georgia  R.  &  B.  Co.  v. 
Smith  (1888)  128  U.  S.  174,  9  Sup.  Ct.  47,  32  L.  ed.  377;  Chicago,  M.  &  St. 
P.  Ry.  Co.  V.  Minnesota  (1890)  134  U.  S.  418,  10  Sup.  Ct.  462,  33  L.  ed. 
970;  Owensboro  v.  Owensboro  W.  Co.  (1904)  191  U.  S.  358,  24  Sup.  Ct. 
82,  48  L.  ed.  217,  and  cases  there  cited.    Compare  note  20,  supra. 

24  Spring  v.  W.  W.  v.  Schottler  (1884)  110  U.  S.  347,  4  Sup.  Ct.  48,  28 
L.  ed.  173;  Spring  V.  W.  W.  v.  Bartlett  (1883)   16  Fed.  615. 


INTERPRETATION  OF  CONTRACTS.  339 

company  was  organized  under  a  statute  providing  that 
the  commissioners  should  not  reduce  the  rates  below  a 
stated  limit,  the  state  may  authorize  the  commissioners  to 
reduce  the  rates  below  that  limit.^^ 


Parties  exempted. 

194.  Moreover,  even  an  express  grant  of  exemption 
from  regulation  does  not  by  implication  extend  to  a  pur- 
chaser ^^  or  a  lessee  ^^  from  the  grantee.  And  the  court 
has  held  in  the  case  of  a  gas  company  that  a  purchasing 
company  which  was  exempt  from  rate  regulation  had  not 

25  Stanislaus  County  v.  San  J.  &  K.  R.  C.  &  I.  Co.  (1904)  192  U.  S.  201, 
24  Sup.  Ct.  241,  48  L.  ed.  406.  The  state  constitution  had  reserved  to  the 
legislature  the  power  to  amend  or  repeal  the  statute  involved.  See  also 
Winchester  &  L.  T.  K.  Co.  v.  Croxton  (1896)  98  Ky.  739,  34  S.  W.  518,  33 
L.  R.  A.  177;  Houston  &  T.  C.  R.  Co.  v.  Storey  (1906)   149  Fed.  499. 

26  Norfolk  &  W.  R.  Co.  v.  Pendleton  (1895)  156  U.  S.  667,  15  Sup.  Ct. 
413,  39  L.  ed.  574;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill  (1895)  156  U.  S.  649, 
15  Sup.  Ct.  484,  39  L.  ed.  567;  Grand  R.  &  I.  Ry.  Co.  v.  Osborn  (1904)  193 
U.  S.  17,  24  Sup.  Ct.  310,  48  L.  ed.  598;  Shields  v.  Ohio  (1877)  95  U.  S.  319,  24 
L.  ed.  357;  Chicago  G.  W.  Ry.  Co.  v.  Minnesota  (1910)  216  U.  S.  234,  30 
Sup.  Ct.  353,  54  L.  ed.  460;  Wright  v.  Georgia  R.  &  B.  Co.  (1910)  216  U.  S. 
420,  30  Sup.  Ct.  242,  54  L.  ed.  544;  Yazoo  &  M.  V.  R.  Co.  v.  Vicksburg 
(1908)  209  U.  S.  358,  28  Sup.  Ct.  510,  52  L.  ed.  833;  Rochester  Ry.  Co.  v. 
Rochester  (1907)  205  U.  S.  236,  27  Sup,  Ct.  469,  51  L.  ed.  784.  See  also 
San  Antonio  T.  Co.  v.  Altgelt  (1906)  200  U.  S.  304,  26  Sup.  Ct.  261,  50 
L.  ed.  491;  Covington  &  L.  T.  R.  Co.  v.  Sandford  (1896)  164  U.  S.  578,  17 
Sup.  Ct.  198,  41  L.  ed.  560;  Snell  v.  Chicago  (1890)  133  111.  413,  24  N.  E. 
532,  8  L.  R.  A.  858;  Matthews  v.  Board  of  Corp.  Comrs.  (1899)  97  Fed. 
400.  In  Louisville  v.  Cumberland  T.  &  T.  Co.  (1912)  224  U.  S.  649,  32 
Sup.  Ct.  572,  56  L.  ed.  934,  and  Minneapolis  v.  Minneapolis  S.  Ry.  Co. 
(1910)  215  U.  S.  417,  30  Sup.  Ct.  118,  54  L.  ed.  259,  there  were  questions 
of  estoppel  of  the  municipality.  Compare  Owensboro  v.  Cumberland  T.  k 
T.  Co.  (1913)  230  U.  S.  58,  33  Sup.  Ct.  988,  57  L.  ed.  1389;  Seaboard  A.  L. 
Ry.  Co.  V.  Railroad  Comn.  (1907)  155  Fed.  792;  Ball  v.  Rutland  R.  Co. 
(1899)   93  Fed.  513. 

27  See  Jetson  v.  University  of  the  South  (1908)  208  U.  S.  489,  28  Sup. 
Ct.  375,  52  L.  ed.  584;  Chicago  U.  T.  Co.  v.  Chicago  (1902)  199  111.  484,  65 
N.  E.  451,  59  L.  R.  A.  631. 


340  THE  IMPAIRMENT  OF  CONTRACTS. 

secured  exemption  as  to  property  which  it  had  acquired 
from  a  company  which  was  not  exempt.^ ^ 

LIMITATIONS  UPON  POWER  TO  CONTRACT. 

In  general. 

195.  Of  course,  the  provision  of  the  Constitution  which 
we  are  considering  does  not  apply  if  the  parties  to  a  con- 
tract are  without  power  to  make  a  binding  contract,  as 
would  be  the  case  if  the  state  legislature  were  forbidden 
by  the  state  constitution  to  make  such  a  contract  as  to 
rates^^  or  if  a  municipality  had  not  received  from  the 
state  authority  to  enter  into  such  a  contract;^*'  and  the 
provision  would  not  apply  if  the  contract  were  for  other 
special  reasons  subject  to  subsequent  state  legislation 
which  might  destroy  its  f  orce.^^  Such  cases  we  shall  now 
consider,  noting  first  the  points  on  which  the  law  is  most 
clearly  settled. 

Contract  with  municipalities. 

196.  A  municipality  cannot  by  contract  bind  itself  not 
to  regulate  rates  unless  the  power  so  to  bind  itself  has 
been  clearly  granted  to  the  municipality.    In  some  cases 

28  People's  G.  &  C.  Co.  v.  Chicago  (1904)  194  U.  S.  1,  24  Sup.  Ct.  520,  48 
L.  ed.  851. 

29  See  Gulf  &  S.  I.  R.  Co.  v.  Hewes  (1901)  183  U.  S.  66,  22  Sup.  Ct.  26, 
46  L.  ed.  86;  Planters'  I.  Co.  v.  Tennessee  (1896)  161  U.  S.  193,  16  Sup. 
Ct.  466,  40  L.  ed.  667;  Keokuk  &  W.  R.  Co.  v.  Missouri  (1894)  152  U.  S. 
301,  14  Sup.  Ct.  592,  38  L.  ed.  450;  Bier  v.  McGehee  (1893)  148  U.  S.  137, 
13  Sup.  Ct.  580,  37  L.  ed.  397;  Lake  County  v.  Graham  (1889)  130  U.  S. 
674,  9  Sup.  Ct.  654,  32  L.  ed.  1065;  Railroad  Companies  v.  Gaines  (1878) 
97  U.  S.  697,  24  L.  ed.  1091;  Shields  v.  Ohio  (1877)  95  U.  S.  319,  24  L.  ed. 
357;  Morgan  v.  Louisiana  (1876)  93  U.  S.  217,  23  L.  ed.  860;  Trask  v. 
Maguire  (1873)  18  Wall.  391,  21  L.  ed.  938;  and  cases  cited  in  Patterson, 
The  United  States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  148. 

30  See  sec.  196,  infra. 

31  See  sees.   197-199,  infra. 


\ 


LIMITATIONS  UPON  POWER  TO  CONTRACT.  341 

exemptions  from  regulation  have  been  secured  by  con- 
tract and  have  been  sustained  against  later  ordinances  by 
which  the  municipalities  have  attempted  to  impair  the 
obligation  of  those  contracts.^^  But  in  other  cases  where 
it  has  been  claimed  that  municipalities  had  by  ordinance 
limited  their  power  over  the  charges  of  public  service 
companies  ^^  the  court  has  decided  that  the  municipalities 
involved  had  not  received  from  the  state  the  power  to 
bind  themselves  by  contract  not  to  regulate  those  rates.^^ 

32  See  note  18,  supra. 

33  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  273,  29  Sup. 
Ct.  50,  52,  53  L.  ed.  176;  Freeport  W.  Co.  v.  Freeport  (1901)  180  U.  S. 
587,  21  Sup.  Ct.  493,  45  L.  ed.  679.  See  also  Murray  v.  Pocatello  (1912)  226 
U.  S.  318,  33  Sup.  Ct.  107,  57  L.  ed.  239;  Rogers  P.  W.  Co.  v.  Fergus 
(1901)  180  U.  S.  624,  21  Sup.  Ct.  490,  45  L.  ed.  702;  Portland  Ry.,  L.  &  P. 
Co.  V.  Portland   (1912)   201  Fed.  119. 

34  See  also  Berryman  v.  Whitman  College  (1912)  222  U.  S.  334,  32  Sup, 
Ct.  147,  56  L.  ed.  225:  territories  are  like  municipalities  in  that  they 
possess  only  powers  bestowed  upon  them.  And  see  Northern  P.  Ry.  Co.  v. 
State  (1908)  208  U.  S.  583,  28  Sup.  Ct.  341,  52  L.  ed.  630;  Brummitt  v. 
Ogden  W.  W.  Co.  ( 1908 )  33  Utah,  285,  93  Pac.  828 ;  Indianapolis  v.  Navin 
(1897)  151  Ind.  139,  47  N.  E.  525,  41  L.  R.  A,  337;  Pope,  Municipal  Con- 
tracts and  Rate  Regulation,  16  Harv.  L.  Rev.  1. — As  was  said  in  Home  T.  & 
T.  Co.  V.  Los  Angeles  (1908)  211  U.  S.  265,  274,  29  Sup.  Ct.  50,  52,  53  L. 
ed.  176,  183,  "It  is  obvious  that  no  case,  unless  it  is  identical  in  its  facts,  can 
serve  as  a  controlling  precedent  for  another,  for  differences,  slight  in  them- 
selves, may,  through  their  relation  with  other  facts,  turn  the  balance  one 
way  or  the  other."  In  that  case,  as  the  court  pointed  out,  "The  charter 
gave  to  the  council  the  power  'by  ordinance  ...  to  regulate  telephone  ser- 
vice and  the  use  of  telephones  within  the  city,  .  .  .  and  to  fix  and  deter- 
mine the  charges  for  telephones  and  telephone  service  and  connections.' 
This  is  an  ample  authority  to  exercise  the  governmental  power  of  regulating 
charges,  but  it  is  no  authority  to  enter  into  a  contract  to  abandon  the  gov- 
ernmental power  itself.  It  speaks  in  words  appropriate  to  describe  the 
authority  to  exercise  the  governmental  power,  but  entirely  unfitted  to  de- 
scribe the  authority  to  contract.  It  authorizes  command,  but  not  agree- 
ment." Later  on  the  court  said,  "The  decisions  of  this  court,  upon  which 
the  appellant  relies,  where  a  contract  of  this  kind  was  found  and  enforced, 
all  show  unmistakably  legislative  authority  to  enter  into  the  contract.  In 
Los  Angeles  v.  Los  Angeles  C.  W.  Co.  (1900)  177  U.  S.  558,  20  Sup.  Ct. 
736,  44  L.  ed.  886,  the  contract  was  in  specific  terms  ratified  and  confirmed 
by  the  legislature.     In  Detroit  v.  Detroit  C.  S.  Ry.  Co.    (1902)    184  U.  S. 


342  THE  IMPAIRMENT  OF  CONTRACTS. 

The  claims  of  exemption  have  been  sustained  in  those 
cases  in  which  the  authority  of  the  municipality  to  make 
the  contract  has  appeared  clearly  and  unmistakably;  but 
in  all  other  cases  the  claim  of  exemption  from  regulation 
has  been  denied. 

368,  22  Sup.  Ct.  410,  46  L.  ed.  592,  the  contract  was  made  in  obedience  to 
an  act  of  the  legislature  that  the  rates  should  be  'established  by  agree- 
ment between  said  company  and  the  corporate  authorities.'  The  opinion 
of  the  court,  after  saying  (184  U.  S.  at  382,  22  Sup.  Ct.  at  416,  46  L.  ed. 
at  606 ) ,  'It  may  be  conceded  that  clear  authority  from  the  legislature  is 
needed  to  enable  the  city  to  make  a  contract  or  agreement  like  the  ordin- 
ance in  question,  including  rates  of  fare,'  pointed  out  ( 184  U.  S.  at  386,  22 
Sup.  Ct.  at  417,  46  L.  ed.  at  607)  that  'it  was  made  matter  of  agreement 
by  the  express  command  of  the  legislature.'  In  Cleveland  v.  Cleveland  C. 
Ry.  Co.  (1904)  194  U.  S.  517,  24  Sup.  Ct.  756,  48  L.  ed.  1102,  the  legisla- 
tive authority  conferred  upon  the  municipality  was  described  in  the  opin- 
ion of  the  court  (194  U.  S.  at  534,  24  Sup.  Ct.  at  761,  762,  48  L.  ed.  at 
1107)  as  'comprehensive  power  to  contract  with  street  railway  companies 
in  respect  to  the  terms  and  conditions  upon  which  such  roads  might  be  con- 
structed, operated,  extended  and  consolidated.'  In  Cleveland  v.  Cleveland 
E.  Ry.  Co.  (1906)  201  U.  S.  529,  26  Sup.  Ct.  513,  50  L.  ed.  854,  precisely 
the  same  authority  appeared.  In  Vicksburg  v.  Vicksburg  W.  Co.  (1907) 
206  U.  S.  496,  27  Sup.  Ct.  762,  51  L.  ed.  1155,  the  court  said  (206  U.  S. 
at  508,  27  Sup.  Ct.  at  766,  51  L.  ed.  at  1160)  :  'The  grant  of  legislative 
power  upon  its  face  is  unrestricted,  and  authorizes  the  "city  to  provide  for 
the  erection  and  maintenance  of  a  system  of  waterworks  to  supply  said  city 
with  water,  and  to  that  end  to  contract  with  a  party  or  parties  who  shall 
build  and  operate  waterworks."  '  Moreover,  in  this  case  the  construction 
of  the  Supreme  Court  of  Mississippi  of  its  own  statutes  was  followed.  On 
the  other  hand,  it  was  held  in  Freeport  W.  Co.  v.  Freeport  (1901)  180  U. 
S.  587,  21  Sup.  Ct.  493,  45  L.  ed.  679,  that  two  acts  of  the  legislature 
passed  on  successive  days  authorizing  municipalities  to  'contract  for  a  sup- 
ply of  water  for  public  use  for  a  period  not  exceeding  thirty  years,'  and  to 
authorize  private  persons  to  construct  waterworks  'and  maintain  the  same 
at  such  rates  as  may  be  fixed  by  ordinance,  and  for  a  period  not  exceeding 
thirty  years,'  did  not  confer  an  authority  upon  the  municipality  to  con- 
tract that  the  water  company  should  be  exempt  from  the  exercise  of  the 
governmental  power  to  regulate  rates.  In  this  case,  too,  the  construction 
of  the  highest  court  of  the  state  was  followed.  See  Rogers  P.  W.  Co.  v. 
Fergus  (1901)  180  U.  S.  624,  21  Sup.  Ct.  490,  45  L.  ed.  702.  All  these 
cases  agree  that  the  legislative  authority  to  the  municipality  to  make  the 
contract  must  clearly  and  unmistakably  appear.  It  does  not  so  appear  in 
the  case  at  bar:"  211  U.  S.  at  276,  277,  29  Sup.  Ct.  at  53,  54,  53  L.  ed.  at 
184. 


LIMITATIONS  UPON  POW^R  TO  CONTRACT.  343 

Contracts  between  state  and  carrier. 

197.  While  a  public  service  corporation  may  by  con- 
tract with  the  state  or  with  a  local  government  secure 
some  exemptions  from  regulation  of  its  rates,  the  rule 
must  be  stated  in  guarded  language.  The  contracts  which 
have  been  enforced  have  all  been  contracts  establishing 
maximum  rates.  And  the  court  has  been  careful  to  sug- 
gest that  the  exemptions  must  be  for  a  definite  tenn,  not 
grossly  unreasonable  in  point  of  time.^^  Even  without 
this  suggestion  it  would  seem  clear  that  there  must  be 
some  limits  to  the  power  of  the  state  to  bargain  away  its 
right  to  regulate  public  service  corporations ;  that,  for  ex- 
ample, a  statute  by  which  a  state  waived  its  right  to  pre- 
vent discrimination  in  rates  would  not  invalidate  subse- 
quent state  legislation  against  such  discrimination.  In 
cases  in  which  rates  were  not  involved  the  court  has  re- 
peatedly decided  that  there  are  serious  limitations  upon 
the  power  of  the  state  to  bargain  away  its  right  to  enact 
legislation.^^ 

Still,  if  the  legislature  has  by  a  definite  contract  au- 
thorized a  carrier  to  charge  specific  rates,  the  courts  can- 

35  Home  T.  &  T.  Co.  v.  Los  Angeles  (1908)  211  U.  S.  265,  273,  29  Sup. 
Ct.  50,  52,  53  L.  ed.  176;  Vieksburg  v.  Vicksburg  W.  Co.  (1907)  206  U.  S. 
496,  508,  515,  27  Sup.  Ct.  762,  766,  769,  51  L.  ed.  1155.  See  also  Portland 
Ry.,  L.  &  P.  Co.  V.  Portland  (1912)  201  Fed.  119,  125. 

36  See  e.  g.,  West  C.  S.  R.  Co.  v.  People  (1906)  201  U.  S.  506,  26  Sup.  Ct. 
518,  50  L.  ed.  845;  Northern  P.  Ry.  Co.  v.  Minnesota  (1908)  208  U.  S.  583, 
28  Sup.  Ct.  341,  52  L.  ed.  630;  Texas  &  N.  O.  R.  Co.  v.  Miller  (1911)  221 
U.  S.  408,  31  Sup.  Ct.  534,  55  L.  ed.  789;  and  also  Louisville  &  N.  R.  Co. 
V.  Kentucky  (1902)  183  U.  S.  503,  518,  22  Sup.  Ct.  95,  101,  46  L.  ed.  298; 
Pearsall  v.  Great  N.  Ry.  Co.  (1896)  161  U.  S.  646,  673,  675,  16  Sup.  Ct. 
705,  713,  714,  40  L.  ed.  838;  cases  cited  in  Patterson,  The  United  States  and 
the  States  Under  the  Constitution,  2d  ed.,  pp.  178,  149;  Black,  Constitu- 
tional Law,  3d  ed.,  p.  737;  Eubank  v.  Richmond  (1912)  226  U.  S.  137,  142, 
33  Sup.  Ct.  76,  77,  57  L.  ed.  156.  Compare  Owensboro  v.  Cumberland  T.  & 
T.  Co.  (1913)  230  U.  S.  58,  33  Sup.  Ct.  988,  57  L.  ed.  1389;  Grand  T.  W.  Ry. 
Co.  V.  South  Bend   (1913)   227  U.  S.  544,  33  Sup.  Ct.  303,  57  L.  ed.  633. 


344  THE  IMPAIRMENT  OF  CONTRACTS. 

not  say  that  the  common  law  limitation  as  to  rates  re- 
mains nevertheless  in  force  and  may  be  enforced  as  such 
by  the  courts.^'^  The  legislature  certainly  has  power  to 
change  the  common  law.^^ 

Contracts  between  carriers  or  between  carrier  and  patron. 

198.  If  a  state  legislature  attempted  to  abrogate  a  con- 
tract between  two  carriers  or  between  a  carrier  and  one 
of  its  jDatrons  simply  in  order  to  relieve  one  of  the  parties 
to  that  contract  from  a  burdensome  obligation,  such  a 
statute  might  well  be  declared  unconstitutional.  But  if 
the  invalidating  of  contracts  were  simply  a  necessary  in- 
cident'^'^  to  the  enforcement  of  a  regulation  enacted  for 
public  ends,  it  seems  that  such  a  statute  should  be  sus- 
tained. As  the  court  has  well  said,  "One  whose  rights, 
such  as  they  are,  are  subject  to  state  restriction,  cannot 
remove  them  from  the  power  of  the  state  by  making  a 
contract  about  them.  The  contract  will  carry  with  it  the 
infirmity  of  the  subject-matter. ' '  ^" 

3"  This  suggestion  was  made  in  Pope,  Municipal  Contracts  and  Rate 
Regulation,  16  Harv.  L.  Rev.  1,  20,  21;  Fenwick,  Charter  Contracts  and  the 
Regulation  of  Rates,  9  Mich.  L.  Rev.  225,  227. 

38  See  sec.  33,  supra. 

39  See  comment  in  note  65  in  Chapter  1  on  Armour  P.  Co.  v.  United 
States  (1908)  209  U.  S.  56,  28  Sup.  Ct.  428,  52  L.  ed.  681. 

40  Hudson  C.  W.  Co.  v.  McCarter  (1908)  209  U.  S.  349,  357,  28  Sup.  Ct. 
529,  531,  52  L.  ed.  828.  See  also  Knoxville  W.  Co.  v.  Knoxville  (1903)  189 
U.  S.  434,  438,  23  Sup.  Ct.  531,  532,  47  L.  ed.  887;  Osborne  v.  San  Diego 
L.  &  T.  Co.  (1900)  178  U.  S.  22,  20  Sup.  Ct.  860,  44  L.  ed.  961;  Chicago,  B. 
&  Q.  R.  Co.  v.  Iowa  (1876)  94  U.  S.  155,  24  L.  ed.  94;  Manigault  v.  Springs 
(1905)  199  U.  S.  473,  480,  26  Sup.  Ct.  127,  130,  50  L.  ed.  274,  in  the  last  of 
which  the  court  said,  "The  interdiction  of  statutes  impairing  the 
obligation  of  contracts  does  not  prevent  the  state  from  exercising 
such  powers  as  are  vested  in  it  for  the  promotion  of  the  common  weal,  or 
are  necessary  for  the  general  good  of  the  public,  though  contracts  previously 
entered  into  between  individuals  may  thereby  be  affected.  .  .  Parties  by 
entering  into  contracts  may  not  estop  the  legislature  from  enacting  laws  in- 
tended for  the  public  good."     And  see  United  States  T.  Co.  v.  Central  U. 


1 

I 


POWER  TO  ALTER,  AMEND  OR  REPEAL.  345 

POWER  TO  ALTER,  AMEND  OR  REPEAL. 

199.  Many  of  the  states  have  by  their  constitutions  or 
by  general  statutes  reserved  the  right  to  alter,  amend  or 
repeal  charters  of  incorporation.^^  Those  reservations 
vary  in  their  terms'^^  and  of  course  it  is  impossible  here  to 
discuss  the  extent  of  the  reserved  power  in  the  several 
states.  It  is  sufficient  to  point  out  that  such  reservations 
become  part  of  the  charters  which  are  subsequently 
granted  and  that  they  have  very  materially  affected  the 
operation  of  the  impairment  of  contract  clause.^^     By 

T.  Co.  (1913)  202  Fed.  66;  Portland  Ry.,  L.  &  P.  Co.  v.  Portland  (1912) 
200  Fed.  890;  BuflFalo  E.  S.  R.  Co.  v.  Buffalo  S.  R.  Co.  (1888)  111  N.  Y. 
132,  19  N.  E.  63,  2  L.  R.  A.  384,  and  annotations  thereto  in  L.  R.  A.  Cas.  as 
Authorities;  Jamieson  v.  Indiana  N.  G.  Co.  (1891)  128  Ind.  555,  28  N.  E. 
76,  12  L.  R.  A.  652;  and  language  used  in  Philadelphia,  B.  &  W.  R.  Co.  t. 
Schubert  (1912)  224  U.  S.  603,  613,  614,  32  Sup.  Ct.  589,  592,  56  L.  ed. 
911,  the  last  of  which  relates  to  federal  legislation,  to  which,  of  course, 
the  impairment  of  contract  clause  does  not  apply.  With  the  cases  in  this 
note  compare  Portland  Ry.,  L.  &  P.  Co.  v.  Portland  (1912)  201  Fed.  119; 
Omaha  W.  Co.  v.  Omaha  (1906)   147  Fed.  1,  12  L.  R.  A.  N.  S.  736. 

41  The  provisions  which  were  in  force  in  the  several  states  in  1905  appear 
in  44  Am.  L.  Reg.  N.  S.  160-169  as  an  appendix  to  an  article  by  Horace 
Stern,  Esq.,  on  Limitations  on  the  Power  of  a  State  Under  a  Reserved  Right 
to  Alter,  Amend  or  Repeal  Charters  of  Incorporation. 

42  This  is  well  pointed  out  in  the  opinion  in  Ex  parte  Koehler  (1885) 
23  Fed.  529,  531.  Some  of  the  expressions  in  opinions  cited  in  note  43, 
infra,  may  possibly  be  explained  on  the  grounds  set  forth  in  Ex  parte 
Koehler. 

43  See,  e.  g.,  Berea  College  v.  Kentucky  (1908)  211  U.  S.  45,  29  Sup.  Ct. 
33,  53  L.  ed.  81;  Polk  v.  Mutual  R.  F.  L.  Assn.  (1907)  207  U.  S.  310,  28 
Sup.  Ct.  65,  52  L.  ed.  222;  Fair  H.  &  W.  R.  Co.  v.  New  Haven  (1906)  203 
U.  S.  379,  27  Sup.  Ct.  74,  51  L.  ed.  237;  San  Antonio  T.  Co.  v.  Altgelt 
(1906)  200  U.  S.  304,  26  Sup.  Ct.  261,  50  L.  ed.  491;  Stanislaus  County  v. 
San  J.  &  K.  R.  C.  &  L  Co.  (1904)  192  U.  S.  201,  24  Sup.  Ct.  241,  48  L.  ed. 
406;  Spring  V.  W.  W.  v.  Schottler  (1884)  110  U.  S.  347,  4  Sup.  Ct.  48,  28 
L.  ed.  173;  Close  v.  Glenwood  Cemetery  (1882)  107  U.  S.  466,  476,  2  Sup. 
Ct.  267,  274,  27  L.  ed.  408;  Stone  v.  Wisconsin  (1876)  94  U.  S.  181,  24  L. 
ed.  102;  People  v.  Public  Service  Comn.  (1912)  153  N.  Y.  App.  Div.  129, 
138  N.  Y.  Supp.  434;  Matthews  v.  Board  of  Corp.  Comrs.  (1899)  97  Fed. 
400;  Parker  v.  Metropolitan  R.  Co.  (1872)  109  Mass.  506;  cases  in  note  44, 
infra;  Patterson,  The  United  States  and  the  States  Under  the  Constitution, 


346  THE  IMPAIRMENT  OF  CONTRACTS. 

virtue  of  such  statutes  and  provisions  of  the  state  consti- 
tutions, the  states  may  withdraw  from  the  corporations 
the  right  to  continue  to  exercise  powers  which  have  been 
bestowed  upon  them  by  the  charters  of  incorporation, 
and  it  may  modify  those  powers.  This  is  true  even 
though  in  so  doing  it  destroys  the  power  of  a  corporation 
to  meet  its  existing  liabilities,'*'* 

Where,  however,  by  the  exercise  of  those  powers  prop- 
erty has  been  acquired,  the  reserved  right  to  alter,  amend 
or  repeal  the  charter  of  incorporation  does  not  empower 
the  state  to  deprive  the  share-holders  of  a  corporation  of 
that  property."*^  It  does  not  authorize  the  state  to  violate 
the  Fourteenth  Amendment.  We  have  already  consid- 
ered the  question  whether  a  state  may  by  contract  acquire 
over  a  corporation  power  which  the  state  would  not  oth- 

2d  ed.,  p.  165;  Stern,  op.  cit.,  44  Am.  L.  Reg.  N.  S.  17,  18;  Southern  P.  Co. 
V.  Portland  (1913)  227  U.  S.  559,  33  Sup.  Ct.  308,  57  L.  ed.  642.  Com- 
pare Owensboro  v.  Cumberland  T.  &  T.  Co.  (1913)  230  U.  S.  58,  33  Sup. 
Ct.  989,  57  L.  ed.  1389;  Pennsylvania  R.  Co.  v.  Philadelphia  County  (1908) 
220  Pa.  100,  68  Atl.  676,  15  L.  R.  A.  N.  S.  108,  with  which  see  44  Am.  L. 
Reg.  N.  S.  17,  18,  note. 

44Calder  v.  Michigan  (1910)  218  U.  S.  591,  599,  31  Sup.  Ct.  122,  123, 
54  L.  ed.  1163;  Polk  v.  Mutual  R.  F.  L.  Assn.  (1907)  207  U.  S.  310,  28 
Sup.  Ct.  65,  52  L.  ed.  222;  Manigault  v.  Springs  (1905)  199  U.  S.  473,  480, 
26  Sup.  Ct.  127,  130,  50  L.  ed.  274;  Knoxville  W.  Co.  v.  Knoxville  (1903) 
189  U.  S.  434,  437,  438,  23  Sup.  Ct.  531,  532,  47  L.  ed.  887;  New  O.  W.  Co. 
V.  Louisiana  (1902)  185  U.  S.  336,  353,  354,  22  Sup.  Ct.  691,  697,  46  L. 
ed.  936;  Chicago  L.  I.  Co.  v.  Needles  (1885)  113  U.  S.  574,  5  Sup.  Ct. 
081,  28  L.  ed.  1084;  Mumma  v.  Potomac  Co.  (1834)  8  Pet.  281,  8  L.  ed. 
945;  see  also  Monongahela  N.  Co.  v.  United  States  (1893)  148  U.  S.  312, 
338,  340,  13  Sup.  Ct.  622,  631,  632,  37  L.  ed.  463;  Newport  &  C.  B.  Co.  v. 
United  States  (1881)  105  U.  S.  470,  26  L.  ed.  1143;  Greenwood  v.  Freight 
Co.  (1881)   105  U.  S.  13,  26  L.  ed.  961. 

45  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  698,  19  Sup. 
Ct.  565,  570,  43  L.  ed.  858;  County  of  Santa  Clara  v.  Southern  P.  R.  Co. 
(1883)  18  Fed.  385;  County  of  San  Mateo  v.  Southern  P.  R.  Co.  (1883)  13 
Fed.  722;  Bacon  v.  Robertson  (1885)  18  How.  480,  15  L.  ed.  499;  Mumma  t. 
Potomac  Co.  (1834)  8  Pet.  281,  8  L.  ed.  945.  Compare  Stern,  Limitations  on 
the  Power  of  a  State  Under  the  Reserved  Right  to  Alter,  Amend  or  Repeal 
Charters  of  Incorporation,  44  Am.  L.  Reg.  N.  S.  1,  36. 


POWER  TO  ALTER,  AMEND  OR  REPEAL.  347 

erwise  possess.'*^  But  such  a  power  clearly  is  not  ob- 
tained by  a  mere  reservation  of  the  right  to  alter,  amend 
or  repeal  the  charter. 

So  also,  while  a  state  may  repeal  a  charter  for  any  rea- 
son whatever  and  may  doubtless  so  do  because  of  a  re- 
fusal on  the  part  of  the  corporation  to  comply  with  a 
statute  which  it  is  beyond  the  power  of  the  state  to  en- 
act,'*'^ this  reserved  power  to  alter,  amend  or  repeal  the 
charter  simply  places  a  power  of  punishment  in  the  hands 
of  the  state  and  does  not  validate  a  statute  which  would 
violate  a  provision  of  the  Constitution  other  than  the  im- 
pairment of  contract  clause.^  ^ 

A  state  may,  however,  regardless  of  any  reservation  of 
power  to  repeal  the  charter,  revoke  that  charter  for  mis- 
user without  thereby  violating  the  Constitution.^^  And 
where  the  property  of  an  individual  might  be  appropri- 
ated upon  the  payment  of  just  compensation,  the  property 
of  a  corporation  or  of  its  stock-holders  may  unquestion- 
ably be  appropriated  in  the  same  manner.^** 

46  See  sec.  22,  supra. 

47  See  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  697,  698, 
19  Sup.  Ct.  565,  570,  43  L.  ed.  858;  opinion  of  Holmes,  J.,  dissenting,  in 
Western  U.  T.  Co.  v.  Kansas  (1910)  216  U.  S.  1,  54,  55,  30  Sup.  Ct.  190, 
209,  54  L.  ed.  355,  and  cases  there  cited. 

48  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith  (1899)  173  U.  S.  684,  19  Sup.  Ct. 
565,  43  L.  ed.  858.  Compare  Chesapeake  &  P.  T.  Co.  v.  Manning  (1902) 
186  U.  S.  238,  22  Sup.  Ct.  881,  46  L.  ed.  1144,  and  dissenting  opinion  in 
that  case. 

49  Cosmopolitan  Club  v.  Virginia  (1908)  208  U.  S.  378,  28  Sup.  Ct.  394, 
52  L.  ed.  536. 

50  Long  I.  W.  S.  Co.  V.  Brooklyn  (1897)  166  U.  S.  685,  17  Sup.  Ct.  718. 
41  L.  ed.  1165;  Offield  v.  New  Y.,  N.  H.  &  H.  B.  Co.  (1906)  203  U.  S.  372, 
27  Sup.  Ct.  72,  51  L.  ed.  231. 


CHAPTER  vnr. 

PREFERENCES  TO  PORTS. 

INTRODUCTORY. 

200.  The  provision. 

201.  ORGANS  OF  GOVERNMENT  RESTRAINED. 

BEARING  ON  RATE  REGtHLATION. 

202.  In  general. 

203.  Differentials. 


INTRODUCTORY. 


The  provision. 


200.  The  Constitution  in  Article  1,  section  9,  clause  6, 
provides  that ' '  No  preference  shall  be  given  by  any  regu- 
lation of  commerce  or  revenue  to  the  ports  of  one  state 
over  those  of  another;  nor  shall  vessels  bound  to,  or  from, 
one  state,  be  obliged  to  enter,  clear,  or  pay  duties  in  an- 
other. ' ' 

ORGANS  OF  GOVERNMENT  RESTRAINED. 

201.  Both  the  context  and  the  subject-matter  show 
clearly  that  this  clause  of  the  Constitution  relates  only  to 
the  federal  government ;  ^  and,  on  the  other  hand,  the 
clause  obviously  applies  not  only  to  legislation  but  also 
to  other  governmental  action,  so  that  even  though  an  act 
of  Congress  were  in  itself  constitutional,  the  giving  of  a 

iSee  Munn  v.  Illinois  (1876)  94  U.  S.  113,  135,  24  L.  ed.  77.  The  sena- 
torial arguments  quoted  in  41  Am.  L.  Rev.  824-826  show  a  surprising  over- 
sight of  the  distinction  between  governmental  action  and  individual  action. 
Compare  the  Civil  Rights  Cases  (1883)  109  U.  S.  3,  3  Sup.  Ct.  18,  27  L. 
ed.  835. 

348 


BEARING  ON  RATE  REGULATION.  349 

preference  by  a  commission  acting  under  that  statute 
would  be  unconstitutional.- 

BEAEING  ON  RATE  REGULATION. 

In  general. 

202.  It  is  obvious  that  rate  regulations  may  be  of  such 
a  nature  as  to  violate  this  provision  of  the  Constitution. 
Rate  regulations  are  unquestionably  regulations  of  com- 
merce; ^  and  if  they  are  of  such  a  nature  as  to  cause  ves- 
sels to  load  or  unload  at  a  port  of  one  state  rather  than 
at  a  port  of  another  state  they  must  be  prohibited  by  the 
sweeping  language  of  the  clause  which  we  are  consider- 
ing.^ 

It  is  true  that  the  court  recognizes  the  fact  that  it  can- 
not carry  out  a  constitution  with  mathematical  accuracy 
to  logical  extremes ;  ^  and  it  refuses  to  make  far-fetched 
interpretations  of  this  restraint  upon  the  power  which 
was  granted  to  Congress  by  the  commerce  clause.^  Thus, 
while  the  regulation  of  interstate  commerce  by  rail  may 
give  an  advantage  to  commerce  wholly  by  water  and  to 
ports  which  can  be  reached  by  means  of  inland  naviga- 

2  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup.  Ct.  1047, 
38  L.  ed.  1014;  Noyes,  American  Railroad  Rates,  228. 

3  Chap.  1,  supra. 

4  Compare  Noyes,  American  Railroad  Rates,  227. — On  the  history  of  the 
adoption  of  the  provision  see  Knowlton  v.  Moore  (1900)  178  U.  S.  41,  104- 
106,  20  Sup.  Ct.  747,  772,  44  L.  ed.  969. 

5  See  sees.  110,  139,  note,  140,  note,  101,  supra. 

6  See  decisions  and  discussions  in  Pennsylvania  v.  Wheeling  &  B.  B.  Co. 
(1885)  18  How.  421,  15  L.  ed.  435;  South  Carolina  v.  Georgia  (1876)  93 
U.  S.  4,  23  L.  ed.  782.  In  the  former  case  it  was  held  that  the  clause  did 
not  invalidate  an  act  of  Congress  which  legalized  the  construction  of  a 
bridge  over  navigable  waters,  although  the  bridge  obstructed  the  commerce 
of  a  port  in  another  state;  and  in  the  latter  case  it  was  held  that  the  clause 
did  not  apply  to  a  diverting  of  water  from  one  navigable  stream  to  another 
in  order  to  improve  navigation  in  the  latter  stream. 


350  PREFERENCES  TO  PORTS. 

tion,  the  fact  that  such  regulation  may  affect  the  ports  of 
one  state  more  than  those  of  another  is  not  in  itself  suffi- 
cient to  render  the  legislation  unconstitutional."  The 
legislation  applies  uniformly  throughout  the  United 
States  to  all  commerce  of  the  same  nature;  and  the  court 
declares  that  the  advantages  which  some  shippers  may 
possess  are  natural  advantages  and  are  not  created  by 
statutory  law.^ 

Differentials. 

203.  It  is  possible  also  that  the  court  would  recognize 
the  validity  of  differentials,  so  far  as  they  were  created 
to  offset  the  natural  disadvantages  of  one  or  more  of  the 
ports  affected  and  to  place  those  ports  on  a  plane  more 
nearly  equal. ^  This  question  apparently  has  never  been 
raised  in  court. 

7  Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  80,  28  Sup.  Ct.  428, 
435,  52  L.  ed.  681,  affirming  Armour  P.  Co.  v.  United  States  (1907)  153 
Fed.  1,  14,  15,  14  L.  R.  A.  N.  S.  400. 

8  Armour  P.  Co.  v.  United  States,  ubi  supra. 

9  On  this  point  see  Noyes,  American  Railroad  Rates,  229,  where  it  is  said, 
"A  preference,  within  the  meaning  of  the  constitutional  provision,  seems 
clearly  to  mean  an  undue  advantage.  The  commission  would  have  the  right 
to  consider  the  conditions  of  the  railroads  and  the  traffic  going  to  dififerent 
ports.  The  requirement  of  a  uniform  charge  per  ton  per  mile  to  diflFerent 
ports  instead  of  treating  the  ports  with  equality  might  give  the  very  prefer- 
ence prohibited  by  the  Constitution.  Levelling  rates  without  regard  to 
conditions  would  create  uniformity  without  equality.  But  what  would  be 
the  result  should  a  commission,  with  rate-making  power,  attempt  to  adjust 
diflerentials  between  different  ports?  An  arbitrary  differential  would  un- 
doubtedly infringe  the  constitutional  provision  against  port  preferences — 
assuming  that  it  applies  to  land  transportation.  A  differential  based  upon 
differences  in  conditions,  on  the  other  hand,  would  not  seem  to  be  an  un- 
lawful preference."  But  in  Morawetz,  The  Power  or  Congress  to  Regulate 
Railway  Rates,  18  Harv.  L.  Rev.  572,  586,  587,  it  is  said,  "It  is  obvious 
that  an  act  of  Congress,  or  an  order  of  a  commission,  merely  fixing  the 
maximum  rates  that  may  be  charged  by  railway  companies  in  respect  of 
shipments  to  or  through  certain  ports,  would  not  give  a  preference  to  the 


BEARING  ON  RATE  REGULATION.  351 

But,  on  the  other  hand,  it  seems  clear  that  if  a  differen- 
tial more  than  offset  natural  disadvantages  or,  instead 
of  merely  allowing  the  ports  of  one  state  to  profit  by  the 
natural  advantages  of  their  position,  were  to  give  to  them 

ports  of  one  state  over  those  of  another,  because  the  railway  companies 
leading  to  each  port  would  compete  freely  with  those  leading  to  other  ports 
by  reducing  their  rat^s.  The  establishment  of  a  differential  in  favor  of  the 
railways  leading  to  a  certain  port  implies  that  the  railways  leading  to 
other  ports  shall  be  prohibited  from  reducing  their  rates  below  a  pre- 
scribed minimum,  and  that  free  competition  among  them  shall  thus  be 
stopped.  While,  possibly,  it  may  be  held  that  the  establishment  of  such  a 
differential  in  respect  of  shipments  between  interior  points  and  the  cities 
situated  at  different  ports  would  not  necessarily  give  a  direct  preference  to 
any  port,  because  such  shipments  may  not  go  through  the  ports  [on  which, 
see  opinion  of  Attorney-General  Moody,  as  printed  in  Hearings  of  Senate 
Committee  on  Interstate  Commerce,  May,  1905,  vol.  II,  p.  1672,  25 
Opinions  of  Attorney-General,  437,  438],  it  seems  clear  that  a  preference 
would  be  given  by  a  differential  in  respect  of  through  shipments  to  or  from 
foreign  points.  As  the  through  rates  in  respect  of  shipments  between 
the  same  points  must  necessarily  be  substantially  alike  by  all  routes,  the 
obvious  purpose  of  the  differential  would  be  to  give  to  the  steamship  lines 
from  certain  ports  a  larger  share  of  the  through  rates  than  the  steamship 
lines  from  other  ports.  It  is  difficult  to  see  how  the  courts  could  avoid 
recognizing  the  fact  that  the  direct  and  necessary  result  would  be  to  give 
a  preference  by  statute  to  certain  ports  at  the  expense  of  others.  It  is  no 
answer  to  say  that  a  regulation  of  Congress,  or  of  a  commission,  merely 
establishing  'the  just  relation  of  rates'  upon  shipments  by  different  ports, 
would  not  grant  a  preference  to  the  ports  of  any  state.  Stated  baldly,  this 
would  mean  that  Congress,  or  a  commission,  can  take  away  from  a  particu- 
lar port  its  natural  advantages  by  granting  a  law-made  advantage  to  other 
ports  by  means  of  a  preferential  regulation  of  commerce.  The  Constitu- 
tion provides  that  no  preference  shall  be  given  by  any  regulation  of  com- 
merce to  the  ports  of  one  state  over  those  of  another.  To  hold  that  Con- 
gress or  a  commission  can  by  law  give  to  the  various  ports  such  preferences 
as  in  the  judgment  of  Congress,  or  a  commission,  will  equalize  their  na- 
tural advantages  would  wholly  destroy  the  value  of  the  constitutional  pro- 
hibition. The  constitutional  prohibition  was  designed  to  prevent  sectional 
legislation  that  might  array  one  part  of  the  country  against  another.  .  .  . 
If  the  power  to  fix  the  relative  rates  of  transportation  to  and  from  differ- 
ent ports  or  sections  of  the  country  is  conferred  upon  [the  Commission], 
the  adjustment  of  railway  rates  in  the  United  States  will  inevitably  become 
a  political  question."  See  also  Olney,  Some  Legal  Aspects  of  Railroad 
Rate-making  by  Congress,  181  N.  A.  Rev.  481,  482,  483;  Hearings  of  Sen- 
ate Committee  on  Interstate  Commerce,  April,  1905,  vol.  II,  pp.  1121,  1123. 


352  PREFERENCES  TO  PORTS. 

a  distinct  advantage  over  the  ports  of  another  state, 
which  advantage  rested  on  a  preference  or  policy  upon 
the  part  of  Congress  or  its  commission,  such  a  differen- 
tial should  be  declared  unconstitutional.^*^ 

10  See  Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  80,  28  Sup. 
Ct.  428,  435,  52  L.  ed.  681;  and  references  to  Morawetz  and  Olney  in  note 
9,  supra;  with  which  compare  Pennsylvania  v.  Wheeling  &  B.  B.  Co. 
(1855)  18  How.  421,  433,  15  L.  ed.  435;  South  Carolina  v.  Georgia  (1876) 
93  U.  S.  4,  13,  23  L.  ed.  782. 


I 


CHAPTER  IX. 

LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

SUITS  AGAINST  THE  GOVERNMENT. 

204.  General  rule. 

205.  What  governments  come  within  the  rule. 

206.  Suits  against  public  oflBcials. 

ENFORCEMENT  OF  LAW. 

207.  Indictment. 

208.  Putting  twice  in  jeopardy. 

209.  Due  process  of  law. 

210.  Trials  in  criminal  cases. 

211.  Suits  at  common  law. 

212.  Self-incrimination. 

213.  Unreasonable  searches  and  seizures. 

214.  Other  testimony. 

215.  Punishment. 

DECISION  OF  CONSTITUTIONAL  QUESTIONS. 

216.  Questions  which  may  be  brought  before  the  court. 

217.  Rules  of  construction. 

218.  Partial  unconstitutionality. 

SUITS  AGAINST  THE  GOVERNMENT. 

General  rule. 

204.  A  sovereign  govenunent  cannot  be  subjected  to 
suit  against  its  will  by  any  individual.^     This  principle 

iSee  Hans  v.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed. 
842;  United  States  v.  Lee  (1882)  106  U.  S.  196,  206,  1  Sup.  Ct.  240,  249, 
27  L.  ed.  171;  Porto  Rico  v.  Rosaly  (1913)  227  U.  S.  270,  33  Sup.  Ct.  352, 
57  L.  ed.  507;  Kawananakoa  v.  Polyblank  (1907)  205  U.  S.  349,  27  Sup.  Ct. 
526,  51  L  ed.  834;  Hopkins  v.  Clemson  Agricultural  College  (1911)  221  U.  S. 
636,  642,  644,  31  Sup.  Ct.  654,  656,  657,  55  L.  ed.  683;  Murray  v.  Wilson 
D.  Co.  (1909)  213  U.  S.  151,  29  Sup.  Ct.  458,  53  L.  ed.  742;  Kansas  v. 
Colorado  (1907)  206  U.  S.  46,  83,  27  Sup.  Ct.  655,  661,  51  L.  ed.  950; 
Briggs  V.  Lightboats  (1865)  93  Mass.  (11  Allen)  157,  162;  Singewald,  The 
Doctrine  of  Non-suability  of  the  State  in  the  United  States,  28  Johns  Hop- 
kins University  Studies,  Part  I;  and  also  Wolf  man.  Sovereigns  as  Defend- 
ants, 4  Am.  Jour,  of  Int.  Law.  373. 

353 

23 


354         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

was  well-recognized  long  before  the  adoption  of  the  Fed- 
eral Constitution  ^  and  the  men  who  were  most  instru- 
mental in  securing  the  adoption  of  the  Constitution  were 
careful  to  point  out  during  the  discussion  which  preceded 
its  adoption  that  there  was  nothing  in  the  grant  of  judi- 
cial power  to  the  federal  government  which  would  en- 
able the  federal  judiciary  to  take  jurisdiction  of  such  a 
suit  against  a  state.^ 

In  the  year  1793,  in  Chisholm  v,  Georgia,'*  the  court 
rendered  a  decision  which  was  clearly  inconsistent  with 
this  principle.  It  decided  that  the  provision  in  Article  III 
which  gave  to  the  federal  government  judicial  power  over 
"controversies  between  a  state  and  citizens  of  another 
state"  applied  not  merely  to  cases  in  which  a  state  was 
the  plaintiff  but  also  to  cases  in  which  a  state  was  against 
its  will  the  defendant.  This  decision,  however,  was 
promptly  and  emphatically  overruled  ^  by  the  adoption  of 
the  Eleventh  Amendment  which  declares  that ' '  The  judi- 
cial power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  at  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States  by  citizens  of  an- 
other state,  or  by  citizens  or  subjects  of  any  foreign 
state." 

2  United  States  v.  Lee  (1882)  106  U.  S.  196,  205,  1  Sup.  Ct.  240,  247,  27 
L.  ed.  171;  Hans  v.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L. 
ed.  842. 

3  See  Hans  v.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed. 
842,  and  authorities  cited  in  opinion. 

4  2  Dall.  419,  1  L.  ed.  440. 

5  See  Singewald,  The  Doctrine  of  Non-suability  of  the  State  in  the  United 
States,  28  Johns  Hopkins  University  Studies,  24;  Hans  v.  Louisiana  (1890) 
134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed.  842;  Guthrie,  The  Eleventh  Amend- 
ment, 8  Col.  L.  Rev.  183,  185,  186.  Compare  South  Dakota  v.  North  Caro- 
lina (1904)  192  U.  S.  286,  318,  24  Sup.  Ct.  269,  275,  48  L.  ed.  448;  Ex 
parte  Young  (1908)  209  U.  S.  123,  150,  28  Sup.  Ct.  441,  450,  52  L.  ed.  714, 
13  L.  R.  A.  N.  S.  932,  943,  14  A.  &  E.  An.  Cas.  764,  771. 


1 


SUITS  AGAINST  THE  GOVERNMENT.  355 

The  effect  of  this  Amendment  was  to  re-establish  the 
law  as  it  had  stood  before  the  decision  of  the  Supreme 
Court.  The  Amendment  affected  suits  then  pending  as 
well  as  suits  which  might  be  brought  in  the  future.^  Lit- 
erally interpreted  it  would  have  denied  to  the  federal 
courts  jurisdiction  over  a  suit  which  was  brought  by  a 
citizen  of  another  state  against  a  state  with  the  consent 
of  the  defendant  state;  yet  the  federal  courts  have  con- 
tinued to  exercise  jurisdiction  in  such  cases.'^  And  the 
Amendment  does  not  in  terms  apply  to  a  suit  brought 
against  a  state  by  one  of  its  own  citizens;  yet  when  such 
a  suit  was  brought  in  a  case  involving  the  application  of 
the  Federal  Constitution,  and  it  was  claimed  that  the 
grant  of  judicial  power  in  all  cases  arising  under  the  Con- 
stitution was  sufficient  to  give  the  court  jurisdiction,  the 
court  enforced  the  principle  which  was  disregarded  in 
Chisholm  v.  Georgia  and  said  that  a  state  may  not  be  sued 
by  an  individual  without  its  consent.® 

In  short,  the  court  does  not  strictly  follow  the  terms  of 
the  Eleventh  Amendment  but,  in  view  of  the  reason  for 
its  adoption,  the  court  rather  regards  the  Amendment  as 
requiring  the  courts  to  observe  the  ancient  rule  as  to  the 

6  Hollingsworth  v.  Virginia   (1798)   3  Dall.  378,  1  L.  ed.  644. 

7  Clark  V.  Barnard  (1883)  108  U.  S.  436,  447,  2  Sup.  Ct.  878,  883,  27  L. 
ed.  780;  Curran  v.  Arkansas  (1853)  15  How.  304,  309,  14  L.  ed.  705; 
Hans  V.  Louisiana  (1890)  134  U.  S.  1,  17,  10  Sup.  Ct.  504,  508,  33  L.  ed. 
842.  Compare  Desert  W.,  O.  &  I.  Co.  v.  California  (1913)  202  Fed.  498; 
Singewald,  The  Doctrine  of  Non-suability  of  the  State  in  the  United  States, 
28  Johns  Hopkins  University  Studies,  29-37 ;  Guthrie,  The  Eleventh  Amend- 
ment, 8  Col.  L.  Rev.  183,  188.  On  the  relation  of  the  Eleventh  Amend- 
ment to  suits  in  admiralty  see  dissenting  opinion  of  Johnson,  J.,  in  Gov- 
ernor of  Georgia  v.  Madrazo  (1828)  1  Pet.  110,  124,  7  L.  ed.  73;  Singe- 
wald, ubi  supra,  23. 

8  Hans  V.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed.  842. 
See  also  North  Carolina  v.  Temple  (1890)  134  U.  S.  22,  10  Sup.  Ct.  509, 
33  L.  ed.  849;  Smith  v.  Reeves  (1900)  178  U.  S.  436,  20  Sup.  Ct.  919,  44 
L.  ed.  1140. 


356         LIMITATIONS  UPON  FEDERAL  JUDICIAL   POWER. 

suability  of  a  sovereign  government  which  was  disre- 
garded in  Chisholm  v.  Georgia. 

What  governments  come  within  the  rule. 

205.  The  rule  that  a  sovereign  government  cannot  be 
subjected  to  suit  against  its  will  by  any  individual  applies 
to  the  federal  government  ^  and  to  the  territories  ^"  as 
well  as  to  the  states/^  but  it  does  not  apply  to  subordinate 
divisions  of  the  states,  such  as  counties/^  or  to  public  cor- 
porations, such  as  a  state  agricultural  college.^  ^ 

Suits  against  public  officials. 

206.  The  rule  has  been  held  to  apply  not  only  where 
the  state  is  actually  named  as  a  party  defendant  on  the 
record  but  also  where  the  proceeding,  though  nominally 
against  an  officer,  is  really  against  the  state  or  is  one  in 
which  it  is  an  indispensable  party.    No  suit,  therefore, 

9  See  International  P.  S.  Co.  v.  Bruce  (1904)  194  U.  S.  601,  24  Sup.  Ct. 
820,  48  L.  ed.  1134;  Belknap  v.  Schild  (1896)  161  U.  S.  10,  16  Sup.  Ct. 
443,  40  L.  ed.  599;  United  States  v.  Lee  (1882)  106  U.  S.  196,  1  Sup.  Ct. 
240,  27  L.  ed.  171.  Compare  National  Home  for  Disabled  Volunteer  Sol- 
diers V.  Parrish   (1913)   229  U.  S.  494,  33  Sup.  Ct.  944,  57  L.  ed.  1296. 

10  Kawananakoa  v.  Polyblank  (1907)  205  U.  S.  349,  27  Sup.  Ct.  526,  51 
L.  ed.  834. 

11  Hans  V.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed.  842; 
North  Carolina  v.  Temple  (1890)  134  U.  S.  22,  10  Sup.  Ct.  509,  33  L.  ed. 
849.  Compare  Ex  parte  Nebraska  (1908)  209  U.  S.  436,  28  Sup.  Ct.  581, 
52  L.  ed.  876,  for  a  ease  in  which  the  state  was  held  to  have  no  interest  in 
the  suit. 

12  Lincoln  County  v.  Luning  (1890)  133  U.  S.  529,  10  Sup.  Ct.  363,  33 
L.  ed.  766;  Camden  I.  Ry.  Co.  v.  Catlettsburg  (1904)  129  Fed.  421.  See 
also  Ettor  v.  Tacoma  (1913)  228  U.  S.  148,  154,  33  Sup.  Ct.  428,  430, 
57  L.  ed.  773. 

13  Hopkins  v.  Clemson  Agricultural  College  (1911)  221  U.  S.  636,  645- 
649,  31  Sup.  Ct.  654,  657,  658,  55  L.  ed.  890.  See  also  National  Home  for 
Disabled  Volunteer  Soldiers  v.  Parrish  (1913)  229  U.  S.  494,  33  Sup.  Ct. 
944,  57  L.  ed.  1296. 


SUITS  AGAINST  THE  GOVERNMENT,  357 

can  be  maintained  against  a  public  officer  which  seeks  to 
compel  him  to  do  any  affirmative  act  which  affects  the 
state 's  political  or  property  rights,  such  as  exercising  the 
state's  power  of  taxation,  or  paying  out  its  money  in  his 
possession  on  the  state's  obligations,  or  executing  a  con- 
tract.14 

But  the  court  has  repeatedly  sustained  injunctions  is- 
sued against  public  officials  to  restrain  the  commission 
of  acts  which  although  done  under  color  of  authority 
would  be  unconstitutional  and  would  cause  irreparable 
injury.^^    Thus,  a  tax-collector  has  been  enjoined  where, 

14  See  Hopkins  v.  Clemson  Agricultural  College  (1911)  221  U.  S.  636, 
642,  31  Sup.  Ct.  654,  656,  55  L.  ed.  890,  citing  Cunningham  v.  Macon  &  B. 
R.  Co.  (1883)  109  U.  S.  446,  3  Sup.  Ct.  292,  609,  27  L.  ed.  992;  North 
Carolina  v.  Temple  (1890)  134  U.  S.  22,  10  Sup.  Ct.  509,  33  L.  ed.  849 
Louisiana  v.  Steele  (1890)  134  U.  S.  230,  10  Sup.  Ct.  511,  33  L.  ed.  891 
Louisiana  v.  Jumel  (1882)  107  U.  S.  711,  2  Sup.  Ct.  128,  27  L.  ed.  448 
Pennoyer  v.  McConnaughy  (1891)  140  U.  S.  1,  11  Sup.  Ct.  699,  35  L.  ed. 
363;  In  re  Ayers  (1887)  123  U.  S.  443,  8  Sup.  Ct.  164,  31  L.  ed.  216;  Hans 
V.  Louisiana  (1890)  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  ed.  842;  Harkrader 
V.  Wadley  (1898)  172  U.  S.  148,  19  Sup.  Ct.  119,  43  L.  ed.  399;  Hagood 
V.  Southern  (1886)  117  U.  S.  52,  70,  6  Sup.  Ct.  608,  616,  29  L.  ed.  805. 
See  also  Murray  v.  Wilson  D.  Co.  (1909)  213  U.  S.  151,  29  Sup.  Ct.  458, 
53  L.  ed.  742;  International  P.  S.  Co.  v.  Bruce  (1904)  194  U.  S.  601,  24 
Sup.  Ct.  820,  48  L.  ed.  1134;  Belknap  v.  Schild  (1896)  161  U.  S.  10,  16 
Sup.  Ct.  443,  40  L.  ed.  599.  Compare,  however,  Tindal  v.  Wesley  (1897) 
167  U.  S.  204,  17  Sup.  Ct.  770,  42  L.  ed.  137;  United  States  v.  Lee  (1882) 
106  U.  S.  196,  1  Sup.  Ct.  240,  27  L.  ed.  171;  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
O'Connor  (1912)  223  U.  S.  280,  32  Sup.  Ct.  216,  56  L.  ed.  436.  Osborn  v. 
United  States  (1824)  9  Wheat.  738,  6  L.  ed.  204,  is  discussed  in  1  Harv. 
L.  Rev.  223. 

15  See  Hopkins  v.  Clemson  Agricultural  College  (1911)  221  U.  S.  636, 
642-644,  31  Sup.  Ct.  654,  656,  657,  55  L.  ed.  890;  Hans  v.  Louisiana  (1890) 
134  U.  S.  1,  20,  10  Sup.  Ct.  504,  509,  33  L.  ed.  842;  Guthrie,  The  Eleventh 
Amendment,  8  Col.  L.  Rev.  183;  and  also  Elliott,  The  Legislatures  and  the 
Courts,  5  Pol.  Sci.  Quar.  224,  227.  Compare  International  P.  S.  Co.  v. 
Bruce  (1904)  194  U.  S.  601,  24  Sup.  Ct.  820,  48  L.  ed.  1134;  Belknap  v. 
Schild  (1896)  161  U.  S.  10,  16  Sup.  Ct.  443,  40  L.  ed.  599.  On  suits  to 
recover  property  held  by  the  state  see  Singewald,  The  Doctrine  of  Non- 
suability  of  the  State  in  the  United  States,  28  Johns  Hopkins  University 
Studies,  Part  II,  chap.  3. 


358         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

under  an  unconstitutional  law,  he  was  about  to  sell  the 
property  of  the  tax-payer;  ^^  a  state  land  commissioner 
has  been  enjoined  from  proceeding  under  an  unconstitu- 
tional act  to  cause  in-eparable  damage  to  property 
rights;  ^'^  commissions  have  been  restrained  from  enforc- 
ing statutes  which  illegally  burdened  interstate  com- 
merce; ^^  and,  to  refer  to  cases  concerning  rate  regulation, 
an  attorney-general  has  been  restrained  from  suing  to  re- 
cover penalties  imposed  by  a  statute  which  was  declared 
unconstitutional,^^  and  railroad  commissions  have  been 
enjoined  from  enforcing  rates  which  the  court  decided 
were  unconstitutional.^ ° 

lePoindexter  v.  Greenhow  (1885)  114  U.  S.  270,  5  Sup.  Ct.  903,  962,  29 
L.  ed.  185. 

iTPennoyer  v.  McConnaughy  (1891)  140  U.  S.  1,  11  Sup.  Ct.  699,  35  L. 
ed.  363.  See  also  Philadelphia  Company  v.  Stimson  (1912)  223  U.  S.  605, 
32  Sup.  Ct.  340,  56  L.  ed.  570;  Ludwig  v.  Western  U.  T.  Co.  (1910)  216 
U.  S.  146,  30  Sup.  Ct.  280,  54  L.  ed.  423.  Compare  Oregon  v.  Hitchcock 
(1906)  202  U.  S.  60,  26  Sup.  Ct.  568,  50  L.  ed.  423. 

18  Mississippi  R.  Comn.  v.  Illinois  C.  R.  Co.  (1906)  203  U.  S.  335,  27  Sup. 
Ct.  90,  51  L.  ed.  209;  McNeill  v.  Southern  Ry.  Co.  (1906)  202  U.  S.  543, 
26  Sup.  Ct.  722,  50  L.  ed.  1142. 

19  Ex  parte  Young  (1908)  209  U.  S.  123,  28  Sup.  Ct.  441,  52  L.  ed.  714, 
13  L.  R.  A.  N.  S.  932,  14  A.  &  E.  An.  Cas.  764.  See  also  Herndon  v.  Chi- 
cago, R.  L  &  P.  Ry.  Co.  (1910)  218  U.  S.  135,  30  Sup.  Ct.  633,  54  L.  ed.  970; 
Western  U.  T.  Co.  v.  Andrews  (1910)  216  U.  S.  165,  30  Sup.  Ct.  286,  54  L. 
ed.  430;  Scully  v.  Bird  (1908)  209  U.  S.  481,  28  Sup.  Ct.  597,  52  L.  ed.  899. 

SOProut  V.  Starr  (1903)  188  U.  S.  537,  23  Sup.  Ct.  398,  47  L.  ed.  584; 
Smyth  V.  Ames  (1898)  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819; 
Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup.  Ct.  1047, 
38  L.  ed.  1014.  See  also  Missouri,  K.  &  T.  Ry.  Co.  v.  Hickman  (1901)  183 
U.  S.  53,  22  Sup.  Ct.  18,  46  L.  ed.  78 ;  Matthews  and  Thompson,  Public  Ser- 
vice Company  Rates  and  the  Fourteenth  Amendment,  15  Harv  L.  Rev.  249, 
353,  360;  Singewald,  The  Doctrine  of  Non-suability  of  the  State  in  the 
United  States,  28  Johns  Hopkins  University  Studies,  41,  90;  Montana, 
W.  &  S.  R.  Co.  V.  Morley  (1912)  198  Fed.  991;  Louisville  &  N.  R.  Co.  v. 
Railroad  Comn.  (1912)  196  Fed.  800  (1907)  157  Fed.  944;  Central  of  Ga. 
Ry.  Co.  v.  Railroad  Comn.  (1908)  161  Fed.  925;  Seaboard  A.  L.  Ry.  Co.  v. 
Railroad  Comn.   (1907)    155  Fed.  792. 


ENFORCEMENT  OF  LAW.  359 

ENTORCEMENT  OF  LAW. 


Indictment. 


207.  The  Fifth  Amendment,  which  refers  only  to  the 
federal  govemment,^^  declares  that  "No  person  shall  be 
held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  ex- 
cept in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public 
danger. ' ' 

Putting  twice  in  jeopardy. 

208.  The  same  Amendment  then  provides  "nor  shall 
any  person  be  subject  for  the  same  offense  to  be  twice  put 
in  jeopardy  of  life  or  limb."  Without  having  given  the 
point  proper  consideration,  the  court  holds  broadly  that 
"jeopardy  of  life  or  limb"  means  "jeopardy  of  punish- 
ment."^^ The  provision  protects  corporations  as  well  as 
natural  "persons."  ^^  It  prohibits  a  second  placing  in 
jeopardy  for  the  same  identical  act  and  crime:  ^^  but  to 
violate  the  provision  the  offenses  charged  in  the  two  pros- 
ecutions must  be  the  same  both  in  law  and  in  fact.^^    If 

21  See  sec.  53,  supra. 

22 Ex  parte  Lange  (1873)  18  Wall.  163,  168,  170,  21  L.  ed.  872.  With 
the  references  in  that  opinion  to  th'^,  common  and  civil  law  compare  sec. 
123,  supra,  and  notes  16  in  Chap.  2,  and  100  in  Chap.  4,  supra.  On  the  sub- 
ject of  "life  or  limb"  consider,  however,  authorities  cited  in  17  A.  &  E. 
Enc.  of  L.,  2d  ed.,  582 ;  Black,  Constitutional  Law,  3d  ed.,  p.  699. 

23  See.  57,  supra. 

24  Grafton  v.  United  States  (1907)  206  U.  S.  333,  27  Sup.  Ct.  749,  51  L. 
ed.  1084;  United  States  v.  Nickerson  (1855)   17  How.  204,  15  L.  ed.  458. 

25  Diaz  V.  United  States  (1912)  223  U.  S.  442,  32  Sup.  Ct.  184,  56  L.  ed. 
500;  Gavieres  v.  United  States  (1911)  220  U.  S.  338,  31  Sup.  Ct.  421,  55 
L.  ed.  489;  Flemister  v.  United  States  ( 1907)  207  U.  S.  372,  28  Sup.  Ct.  129, 
52  L.  ed.  252;  Burton  v.  United  States  (1906)  202  U.  S.  344,  26  Sup.  Ct. 
689,  50  L.  ed.  1057;  Hotema  v.  United  States  (1902)  186  U.  S.  413,  421, 
422,  22  Sup.  Ct.  895,  899,  46  L.  ed,  1225;  United  States  v.  Eandenbush 
(1834)   8  Pet.  288,  8  L.  ed.  948;   17  A.  &  E.  Enc.  of  L.,  2d  ed.,  596,  602; 


360         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

upon  the  former  trial  the  jury  has  disagreed  ^^  or  if  a  ver- 
dict against  the  accused  person  has  been  set  aside  upon 
his  motion  for  error  at  the  trial,-"  a  second  trial  may  be 
held;  but  where  there  has  been  a  verdict  in  favor  of  the 
defendant  the  prosecution  cannot  be  allowed  a  new  trial.^^ 
And  where  a  court  which  is  empowered  upon  conviction 
to  impose  either  a  fine  or  imprisonment  has  imposed  both 
a  fine  and  imprisonment,  and  the  fine  has  been  paid,  the 
court  cannot  thereafter  modify  its  judgment  by  imposing 
imprisonment  alone.^^ 

Due  process  of  law. 

209.  *'Due  process  requires  that  the  court  which  as- 
sumes to  determine  the  rights  of  parties  shall  have  juris- 

Black,  Constitutional  Law,  3d  ed.,  p.  702;  12  Cyc.  280.  The  provision  does 
not  forbid  the  imposing  of  an  additional  penalty  upon  a  prisoner  upon 
proof  of  former  conviction  for  another  offense:  Graham  v.  West  Virginia 
(1912)  224  U.  S.  616,  32  Sup.  Ct.  583,  56  L.  ed.  917.  On  continuing  of- 
fenses see  17  A.  &  E.  Enc.  of  L.,  2d  ed.  603.  Where  an  act  violates  both  a 
state  law  and  a  municipal  ordinance  a  prosecution  under  one  will  not  bar 
prosecution  under  the  other:  Ibid.  605;  Black,  op.  cit.,  p.  700:  compare 
Grafton  v.  United  States  (1907)  206  U.  S.  333,  27  Sup.  Ct.  749,  51  L.  ed. 
1084;  United  States  v.  Mason  (1909)  213  U.  S.  115,  29  Sup.  Ct.  480, 
53  L.  ed.  725. 

26  See  cases  cited  in  Keerl  v.  Montana  (1909)  213  U.  S.  135,  29  Sup.  Ct. 
469,  53  L.  ed.  734. 

27  United  States  v.  Ball  (1896)  163  U.  S.  662,  672,  16  Sup.  Ct.  1192, 
1195,  41  L.  ed.  300.  See  also  Trono  v.  United  States  (1905)  199  U.  S.  521. 
26  Sup.  Ct.  121,  50  L.  ed.  292;  Brantley  v.  Georgia  (1910)  217  U.  S.  284, 
30  Sup.  Ct.  514,  54  L.  ed.  768;  12  Cyc.  279. 

28Kepner  v.  United  States  (1904)  195  U.  S.  100,  24  Sup.  Ct.  797,  49  L. 
ed.  65;  United  States  v.  Ball  (1896)  163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L. 
ed.  300.  But  the  government  may  be  allowed  a  writ  of  error  where  an  in- 
dictment is  quashed,  for  in  that  case  the  moment  of  jeopardy  has  not 
been  reached:  Taylor  v.  United  States  (1907)  207  U.  S.  120,  28  Sup.  Ct. 
53,  52  L.  ed.  130.  On  appeals  by  the  government  in  criminal  cases  see 
United  States  v.  Evans  (1909)  213  U.  S.  297,  29  Sup.  Ct.  507,  53  L.  ed. 
803;  20  Harv.  L.  Rev.  219;  dissenting  opinion  in  Kepner  v.  United  States, 
supra;  17  A.  &  E.  Enc.  of  L.,  2d  ed.,  584,  585. 

29  Ex  parte  Lange  (1873)   18  Wall.  163,  21  L.  ed.  872. 


ENFORCEMENT  OF  LAW.  361 

diction,  and  that  there  shall  be  notice  and  opportunity  for 
hearing  given  the  parties.  Subject  to  these  fundamental 
conditions,  which  seem  to  be  universally  prescribed  in  all 
systems  of  law  established  by  civilized  countries,  this 
court  has  up  to  this  time  sustained  all  state  laws,  statu- 
tory or  judicially  declared,  regulating  procedure,  evi- 
dence and  methods  of  trial,  and  held  them  to  be  consis- 
tent with  due  process  of  law."  ^° 

Trials  in  criminal  cases. 

210.  There  are,  however,  other  provisions  of  the  Con- 
stitution which  further  regulate  procedure  in  federal 
courts.  ''The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury;  and  such  trial  shall  be  held 
in  the  state  where  the  said  crimes  shall  have  been  com- 
mitted; but  when  not  committed  within  any  state,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed. "^^  ''In  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  state  and  district  where- 
in the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be 
confronted  with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and 
to  have  the  assistance  of  counsel  for  his  defense. ' '  ^^ 

By  virtue  of  these  provisions  a  defendant  whose  re- 
moval from  the  district  in  which  he  was  arrested  to  that 

30 Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  110,  111,  29  Sup.  Ct.  14, 
24,  53  L.  ed.  97.     See  also  further  authorities  cited  in  sec.  65,  supra. 

31  Article  III,  sec.  2,  clause  3. 

32  Amendment  VI.  On  the  history  of  these  provisions  see  Connor,  The 
Constitutional  Right  to  a  Trial  by  a  Jury  of  the  Vicinage,  57  U.  of  Pa.  L. 
Rev.  192. 


362         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

in  which  it  is  alleged  that  he  committed  a  crime  is  sought 
is  entitled  to  show  that  no  offense  triable  in  the  district  to 
which  his  removal  is  sought  has  been  committed.^^  The 
provisions  control  criminal  proceedings  in  the  District  of 
Columbia  ^^  as  well  as  in  the  federal  courts  in  the  several 
states.  Where,  however,  a  crime  has  been  committed 
within  one  of  the  territories  Congress  may  designate  the 
place  of  trial  at  any  time  previous  to  the  trial. ^^  Con- 
gress may  also  provide  that  the  obtaining  of  transporta- 
tion at  a  concession  from  the  published  rate  shall  be  an 
offense  which  shall  be  triable  in  any  district  through 
which  the  transportation  is  had,  for  the  constitutional  re- 
quirement is  as  to  the  locality  of  the  offense  and  not  the 
personal  presence  of  the  offender.^*^  The  provisions  apply 
only  to  criminal  proceedings^'^  in  the  federal  courts;  ^'^^ 
and  the  right  to  trial  by  jury  may  be  waived  by  persons 
charged  with  minor  offenses.^^  Federal  courts  may  also 
enjoin  the  commission  of  crimes  and  then  punish  their 
commission  without  trial  by  jury.^^ 

33Tinsley  v.  Treat  (1907)   205  U.  S.  20,  27  Sup.  Ct.  430,  51  L.  ed.  689; 

Gould  V.  Youngworth  (1907)  205  U.  S.  638,  27  Sup.  Ct.  791,  51  L.  ed.  920. 

34Callan  v.  Wilson  (1888)   127  U.  S.  540,  8  Sup.  Ct.  1301,  32  L.  ed.  223. 

35  Cook  V.  United  States  (1891)  138  U.  S.  157,  11  Sup.  Ct.  268,  34  L. 
ed.  906. 

36  Armour  P.  Co.  v.  United  States  (1908)  209  U.  S.  56,  28  Sup.  Ct.  428, 
52  L.  ed.  681. 

37  United  States  v.  Zucker  (1896)  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L. 
ed.  777;  Ex  parte  Terry  (1888)  128  U.  S.  289,  9  Sup.  Ct.  77,  32  L.  ed.  405; 
Fong  Yue  Ting  v.  United  States  (1893)  149  U.  S.  698,  13  Sup.  Ct.  977, 
1016,  37  L.  ed.  905;  Wong  Wing  v.  United  States  (1896)  163  U.  S.  228,  16 
Sup.  Ct.  977,  41  L.  ed.  140;  United  States  v.  Williams  (1904)  194  U.  S. 
279,  24  Sup.  Ct.  719,  48  L.  ed.  979. 

37a  Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Alabama  (1888)  128  U.  S.  96,  9 
Sup.  Ct.  28,  32  L.  ed.  352;  Twitchell  v.  Commonwealth  (1868)  7  Wall. 
321,  19  L.  ed.  223. 

38 Schick  V.  United  States  (1904)  195  U.  S.  65,  24  Sup.  Ct.  826,  49  L. 
ed.  99. 

39  In  re  Debs  (1895)  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  ed.  1092.    See 


ENFORCEMENT  OF  LAW.  363 

Suits  at  common  law. 

211.  The  Seventh  Amendment  declares  that  ''In  suits 
at  common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served. ' '  This  Amendment  restrains  the  exercise  of  pow- 
ers by  the  United  States,  but  not  by  the  states.^^  It  does 
not  affect  equity  cases  in  the  federal  courts;  ^^  it  does  not 
affect  cases  in  which  a  defendant  has  voluntarily  relin- 
quished the  right  to  trial  by  jury  in  a  particular  case;  ^^ 
and  it  does  not  forbid  the  awarding  of  a  non-suit  for  want 
of  sufficient  evidence.^^  In  all  cases,  however,  in  which 
the  right  of  trial  by  jury  is  secured  by  the  Constitution 
the  jury  must  be  unanimous  in  rendering  its  verdict.^^ 

The  Seventh  Amendment  also  provides  that  ''no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of 
the  common  law."  By  virtue  of  this  provision  no  appel- 
late federal  tribunal  may  consider  whether  the  verdict  of 

also  Mack,  The  Revival  of  Criminal  Equity,  16  Harv.  L.  Rev.  389;  Gregory, 
Grovernment  by  Injunction,  11  Harv.  L.  Rev.  487;  Fauntleroy,  Government 
by  Injunction,  69  Cent.  L.  J.  129;  Roe,  Our  Judicial  Oligarchy,  146-155. 

40  Pearson  v.  Yewdall  (1877)  95  U.  S.  294,  24  L.  ed.  436;  Walker  v. 
Sauvinet  (1875)  92  U.  S.  90,  23  L.  ed.  678;  Edwards  v.  Elliott  (1874)  21 
Wall.  532,  22  L.  ed.  487. 

41  Barton  v.  Barbour  (1881)  104  U.  S.  126,  26  L.  ed.  672;  Parsons  v. 
Bedford  (1830)  3  Pet.  433,  446,  7  L.  ed.  732.  See  also  Patterson,  The 
United  States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  255.  But 
where  a  plaintiff  has  an  appropriate  remedy  at  law  he  cannot  seek  relief 
in  a  court  of  equity:  Singer  S.  M.  Co.  v.  Benedict  (1913)  229  U.  S.  481,  33 
Sup.  Ct.  942,  57  L.  ed.  1288;  Whitehead  v.  Shattuck  (1891)  138  U.  S.  146, 
11  Sup.  Ct.  276,  34  L.  ed.  873;  Cates  v.  Allen  ( 1893)  149  U.  S.  451,  13  Sup. 
Ct.  833,  977,  37  L.  ed.  804. 

42  Bank  of  Columbia  v.  Okely   (1819)   4  Wheat.  235,  4  L.  ed.  559. 
43Coughran  v.  Bigelow  (1896)   164  U.  S.  301,  17  Sup.  Ct.  117,  41  L.  ed. 

442. 

44Springville  v.  Thomas  (1897)  166  U.  S.  707,  17  Sup.  Ct.  717,  41  L.  ed. 
1172;  American  P.  Co.  v.  Fisher  (1897)  166  U.  S.  464,  17  Sup.  Ct.  618,  41 
L.  ed.  1079. 


364         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

a  jury  in  a  case  at  common  law  was  against  the  weight  of 
the  evidence.^ ^  The  appellate  court  may  set  aside  a  ver- 
dict for  error  of  law  in  the  proceedings  and  order  a  new 
trial,  but  it  may  not  itself  determine  the  issues  of  fact.^® 

Self-incrimination. 

212.  The  Fifth  Amendment,  which  relates  only  to  the 

45  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago  (1897)  166  U.  S.  226,  242,  246,  17 
Sup,  Ct.  581,  587,  588,  41  L.  ed.  979.  See  also  Maxwell  v.  Dow  (1900) 
176  U.  S.  581,  598,  20  Sup.  Ct.  448,  494,  455,  44  L.  ed.  597;  Chrisman  v. 
Miller  (1905)  197  U.  S.  313,  25  Sup.  Ct.  468,  49  L.  ed.  770,  cases  there 
cited,  and  Backus  v.  Fort  S.  U.  D.  Co.  (1898)  169  U.  S.  557,  565,  18  Sup. 
Ct.  445,  449,  42  L.  ed.  853;  Kerfoot  v.  Farmers'  &  M.  Bk.  (1910)  218  U.  S. 
281,  288,  31  Sup.  Ct.  14,  15,  54  L.  ed.  1042;  Mammoth  M.  Co.  v.  Grand  C. 
M.  Co.  (1909)  213  U.  S.  72,  73,  29  Sup.  Ct.  413,  414,  53  L.  ed.  702.  Com- 
pare Kansas  C.  S.  Ry.  Co.  v.  Albers  Comn.  Co.  (1912)  223  U.  S.  573,  32 
Sup.  Ct.  316,  56  L.  ed.  556;  Elliott  v.  Toeppner  (1902)  187  U.  S.  327,  333, 
335,  23  Sup.  Ct.  133,  136,  47  L.  ed.  200;  Capital  T.  Co.  v,  Hof  (1899)  174 
U.  S.  1,  19  Sup.  Ct.  580,  43  L.  ed.  873;  Cedar  R,  G.  L.  Co.  v.  Cedar  Rapids 
(1912)  223  U.  S.  655,  32  Sup.  Ct,  389,  56  L,  ed,  594;  Ubarri  v,  Laborde 
(1909)  214  U,  S.  168,  171,  29  Sup.  Ct,  549,  551,  53  L,  ed,  955;  Empire  S. 
C.  Co.  V.  Atchison,  T,  &  S,  F.  Ry.  Co.  (1908)  210  U.  S.  1,  28  Sup,  Ct.  607, 
52  L.  ed.  931;  Behr,  Meyer  &  Co.  v.  Campbell  &  Gu  Tauco  (1907)  205  U.  S. 
403,  407,  27  Sup.  Ct.  502,  504,  51  L.  ed.  857.  Under  the  judiciary  act  the 
United  States  Supreme  Court  cannot  review  findings  of  fact  by  state  courts : 
Dower  v.  Richards  (1894)  151  U.  S.  658,  14  Sup.  Ct.  452,  38  L.  ed.  305; 
Bement  v.  National  H.  Co.  (1902)  186  U.  S.  70,  22  Sup.  Ct.  747,  46  L.  ed. 
1058;  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota  (1904)  193  U.  S.  53,  24 
Sup.  Ct.  396,  48  L.  ed.  614;  St.  Louis  &  S.  F.  R.  Co.  v,  Hadley  (1909)  168 
Fed,  317,  339;  and  see  Portland  Ry.,  L.  &  P.  Co.  v.  Railroad  Comn.  of 
Oregon  (1913)  229  U.  S.  397,  411,33  Sup.  Ct,  820,  827,57  L.  ed.  1259;  Max- 
well V.  Dow,  supra;  Rankin  v.  Emigh  (1910)  218  U.  S.  27,  32,  30  Sup,  Ct. 
672,  675,  54  L,  ed.  915;  Thomas  v.  Texas  (1909)  212  U.  S.  278,  29  Sup.  Ct. 
393,  53  L.  ed.  512;  Waters-Pierce  Oil  Co.  v.  Texas  ( 1909)  212  U.  S.  86,  97,  29 
Sup.  Ct.  220,  221,  53  L.  ed.  417;  Gulf,  C.  &  S.  F.  Ry.  Co.  v,  Texas  (1907) 
204  U,  S.  403,  411,  27  Sup.  Ct.  360,  362,  51  L.  ed.  540.  The  court  may, 
however,  it  seems,  review  findings  of  fact  by  lower  federal  courts  in  so  far 
as  they  involve  questions  concerning  the  jurisdiction  of  those  courts:  see 
Commercial  M.  A.  Co.  v.  Davis  (1909)  213  U.  S.  245,  256,  29  Sup.  Ct.  445, 
448,  53  L.  ed.  782. 

46Slocum  V.  New  Y.  L.  I,  Co.  (1913)  228  U.  S.  364,  33  Sup.  Ct.  523,  57 
L.  ed.  879;  Pedersen  v.  Delaware,  L.  &  W.  R.  Co.  (1913)  229  U.  S.  146, 
33  Sup.  Ct.  648,  57  L.  ed.  1125.  See  also  Thorndike,  Trial  by  Jury  in 
United  States  Courts,  26  Harv.  L.  Rev.  732. 


ENFORCEMENT  OF  LAW.  365 

federal  govemment,^'^  provides  tliat  "No  person  .  .  . 
shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself."  This  provision  rendered  unconstitu- 
tional an  act  of  CongTess  which  authorized  a  court  to  re- 
quire a  defendant  to  produce  his  books  and  papers  in  a 
suit  which  sought  the  forfeiture  of  his  estate,  on  pain  of 
having  the  statements  of  the  government's  counsel  as  to 
the  contents  thereof  taken  as  true  and  used  as  testimony 
for  the  government;"*^  and  it  was  held  to  protect  a  wit- 
ness who  refused  to  testify  under  a  statute  which  stipu- 
lated that  his  testimony  should  not  be  used  against 
him ;  "^^  but  it  did  not  protect  a  witness  who  refused  to 
testify  under  a  later  statute  which  afforded  him  absolute 
immunity,  federal  and  state,  for  the  offense  to  which  the 
question  related.^"    Where,  however,  a  witness  has  testi- 

47  Sec.  53,  supra.  See  also  Twining  v.  New  Jersey  (1908)  211  U.  S.  78, 
29  Sup.  Ct.  14,  53  L.  ed.  97. 

48  Boyd  V.  United  States  (1886)  116  U.  S.  616,  6  Sup.  Ct.  524,  29  L.  ed. 
746.  The  court  said,  116  U.  S.  at  634,  6  Sup.  Ct.  at  534,  29  L.  ed.  at  752, 
that  while  the  proceeding  was  civil  in  form  it  was  criminal  in  substance 
and  effect  and  therefore  prohibited  by  the  Fifth  Amendment.  Compare  20 
Harv.  L.  Rev.  233 ;  5  Harv.  L.  Rev.  24.  On  dicta  in  Boyd  v.  United  States 
see  Wigmore  on  Evidence,  pp.  3126,  3127,  vol.  V,  p.  230. 

49Counselman  v.  Hitchcock  (1892)  142  U.  S.  547,  12  Sup.  Ct.  195,  35 
L.  ed.  1110.  See  also  Ballman  v.  Fagan  (1906)  200  U.  S.  186,  26  Sup.  Ct. 
212,  50  L.  ed.  433;  In  re  Beer   (1908)   17  N.  D.  184,  115  N.  W.  672. 

50  Brown  v.  Walker  (1896)  161  U.  S.  591,  16  Sup.  Ct.  644,  40  L. 
ed.  819.  Four  justices  dissented.  See  also  Hale  v.  Henkel  (1906)  201 
U.  S.  43,  26  Sup.  Ct.  370,  50  L.  ed.  652;  Interstate  Com.  Comn.  v.  Baird 
(1904)  194  U.  S.  25,  45,  24  Sup.  Ct.  563,  569,  48  L.  ed.  860.  The  court 
said,  161  U.  S.  605,  606,  16  Sup.  Ct.  650,  40  L.  ed.  824,  "If  the  proposed  tes- 
timony is  material  to  the  issue  on  trial,  the  fact  that  the  testi- 
mony may  tend  to  degrade  the  witness  in  public  estimation  does  not 
exempt  him  from  the  duty  of  disclosure.  .  .  .  The  design  of  the  constitu- 
tional privilege  is  not  to  aid  the  witness  in  vindicating  his  character,  but 
to  protect  him  against  being  compelled  to  furnish  evidence  to  convict  him 
of  a  criminal  charge.  ...  If  it  be  once  conceded  that  the  fact  that  his 
testimony  may  tend  to  bring  the  witness  into  disrepute,  though  not  to 
incriminate  him,  does  not  entitle  him  to  the  privilege  of  silence,  it  neces- 
sarily follows  that  if  it  also  tends  to  incriminate,  but  at  the  same  time 


366         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

fied  voluntarily,  thereby  waiving  his  constitutional  privi- 
lege, he  may  be  fully  cross-examined  as  to  the  testimony 
which  he  has  given.^^ 

While,  as  a  general  rule,  a  defendant  may  not  be 
obliged  to  produce  his  books  to  furnish  evidence  against 
himself,  the  Amendment  does  not  protect  him  against 
their  production ;  -^^  and  a  bankrupt  may  not  refuse  to 
surrender  his  books  to  the  receiver;  ^^  nor  may  the  officer 
of  a  corporation  refuse  to  produce  in  court  its  books  in 
his  possession  upon  the  ground  that  they  would  incrimi- 
nate him ;  ^^  and  he  may  be  required  to  produce  such  books 
and  (in  view  of  the  protection  afforded  hj  the  immunity 
statute  to  himself  in  such  case)  to  testify,  although  the 

operates  as  a  pardon  for  the  offense,  the  fact  that  the  disgrace  remains  no 
more  entitles  him  to  immunity  in  this  case  than  in  the  other." — The  statute 
does  not  protect  a  witness  whose  testimony  may  be  required  by  reason  of 
it  from  prosecution  for  crimes  with  which  the  matters  testified  about  were 
only  remotely  connected:  Heike  v.  Unit«d  States  (1913)  227  U.  S.  131, 
33  Sup.  Ct.  226,  57  L.  ed.  450.  And  the  statute  does  not  protect  one  tes- 
tifying under  it  from  prosecution  for  perjury  while  so  testifying:  Glick- 
stein  V.  United  States  (1911)  222  U.  S.  139,  32  Sup.  Ct.  71,  56  L.  ed.  128. 

51  Powers  V.  United  States  (1912)  223  U.  S.  303,  32  Sup.  Ct.  281,  56  L. 
ed.  448;  Sawyer  v.  United  States  (1906)  202  U.  S.  150,  26  Sup.  Ct.  575, 
50  L.  ed.  972. 

52  Johnson  V.  United  States  (1913)  228  U.  S.  457,  33  Sup.  Ct.  572,  57 
L.  ed.  919.  See  also  Wigmore  on  Evidence,  p.  3126.  Compare  People  ex 
rel.  Ferguson  v.  Reardon  (1908)  124  N.  Y.  App.  Div.  818,  109  N.  Y.  Supp. 
504. 

53  In  the  Matter  of  George  Harris  (1911)  221  U.  S.  274,  31  Sup.  Ct. 
557,  55  L.  ed.  732. 

54  Wilson  V.  United  States  (1911)  221  U.  S.  361,  31  Sup.  Ct.  538,  55  L. 
ed.  771;  Dreier  v.  United  States  (1911)  221  U.  S.  394,  31  Sup.  Ct.  550,  55 
L.  ed.  784;  Baltimore  &  0.  R.  Co.  v.  Interstate  Com.  Comn.  (1911)  221  U. 
S.  612,  31  Sup.  Ct.  621,  55  L.  ed.  878;  Wheeler  v.  United  States  (1913) 
226  U.  S.  478,  33  Sup,  Ct.  158,  57  L.  ed.  309.  See  also  Grant  v.  United 
States  (1913)  227  U.  S.  74,  33  Sup.  Ct.  190,  57  L.  ed.  423;  Heike  v.  United 
States  (1913)  227  U.  S.  131,  143,  33  Sup.  Ct.  226,  228,  57  L.  ed.  450. 


ENFORCEMENT  OF  LAW.  367 

production  of  those  books  and  his  testimony  may  incrim- 
inate the  corporation.^^ 

Unreasonable  searches  and  seizures. 

213.  The  Fourth  Amendment,  which,  like  the  rest  of 
the  first  ten  Amendments,  relates  only  to  the  federal  gov- 
ernment, declares  that ' '  The  right  of  the  people  to  be  se- 
cure in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures,  shall  not  be  violated, 
and  no  warrant  shall  issue,  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. ' ' 

The  court  has  held  ^^  that  this  provision  also  renders 
unconstitutional  the  act  of  Congress  which  we  have  al- 
ready noted  ^'^  which  authorized  a  court  to  require  a  de- 
fendant in  revenue  cases  to  produce  his  papers  under  pen- 
alty of  admitting  the  truth  of  the  statements  of  the  attor- 
ney for  the  government  as  to  what  those  papers  would 
prove  if  produced.  But  "subsequent  cases  treat  the 
Fourth  and  Fifth  Amendments  as  quite  distinct,  having 
different  histories  and  performing  different  func- 
tions;" ^^  and  hold  that  "the  search  and  seizure  clause  of 
the  Fourth  Amendment  was  not  intended  to  interfere 

55  Hale  V.  Henkel  (1906)  201  U.  S.  43,  26  Sup.  Ct.  370,  50  L.  ed.  652; 
McAlister  v.  Henkel  (1906)  201  U.  S.  90,  26  Sup.  Ct.  385,  50  L.  ed.  671; 
Nelson  v.  United  States  (1906)  201  U.  S.  92,  26  Sup.  Ct.  358,  50  L.  ed.  673. 
See  also  Wilson  v.  United  States  (1911)  221  U.  S.  361,  384,  31  Sup.  Ct. 
538,  546,  55  L.  ed.  771.  Compare  Proskauer,  Corporate  Privilege  Against 
Self  Incrimination,  11  Col.  L.  Rev.  445. 

56  Boyd  V.  United  States  (1886)  116  U.  S.  616,  6  Sup.  Ct.  524,  29  L.  ed. 
746. 

57  Sec.  212,  supra. 

58  Hale  V.  Henkel  (1906)  201  U.  S.  43,  72,  26  Sup.  Ct.  370,  378,  50  L. 
ed.  652.  See  also  Wigmore  on  Evidence,  pp.  3126,  3127,  vol.  V,  p.  230; 
Fitzgerald,  John  Wilkes,  chapter  6. 


368  LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

with  the  power  of  courts  to  compel,  through  a  subpoena 
duces  tecum,  the  production,  upon  a  trial  in  court,  of  doc- 
umentary evidence.  "^^ 

Other  testimony. 

214.  The  Sixth  Amendment  provides  that ' '  In  all  crim- 
inal prosecutions,  the  accused  shall  enjoy  the  right  .  . 
to  be  confronted  with  the  witnesses  against  him;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defense."  If 
witnesses  for  the  prosecution  have  died,  testimony  given 
by  those  witnesses  at  a  previous  trial  on  the  same  issue  is 
admissible;^"  but  their  evidence  is  not  admissible  when 
their  absence  is  due  to  negligence  of  officers  of  the  gov- 
ernment ®^  but  in  a  trial  for  receiving  stolen  property, 
the  record  of  the  conviction  of  the  thief  cannot  be  admit- 
ted in  evidence  to  prove  the  theft.^^ 

Punishment. 

215.  The  Eighth  Amendment  provides  that  ''Excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted." 

This  Amendment  clearly  applies  only  to  state  action;  *' 

50  Hale  V.  Henkel  (1906)  201  U.  S.  43,  73,  26  Sup.  Ct.  370,  378,  50  L. 
ed.  652.  See  also  Grant  v.  United  States  (1913)  227  U.  S.  74,  33  Sup.  Ct. 
190,  57  L.  ed.  423;  Wlieeler  v.  United  States  (1913)  226  U.  S.  478,  33 
Sup.  Ct.  158,  57  L.  ed.  309;  Wilson  v.  United  States  (1911)  221  U.  S.  361, 
31  Sup.  Ct.  538,  55  L.  ed.  771;  and  other  cases  cited  in  notes  54,  55,  supra. 

eoMattox  V.  United  States  (1895)  156  U.  S.  237,  15  Sup.  Ct.  337,  39  L. 
ed.  409. 

61  Motes  V.  United  States  (1900)  178  U.  S.  458,  20  Sup.  Ct.  993,  44  L. 
ed.  1150. 

62Kirby  v.  United  States  (1899)  174  U.  S.  47,  19  Sup.  Ct.  574,  43  L.  ed. 
890. — On  this  Amendment  in  general  see  also  Patterson,  The  United  Statea 
and  the  States  Under  the  Constitution,  2d  ed.,  p.  254. 

63  0'Neil  V.  Vermont  (1892)  144  U.  S.  323,  12  Sup.  Ct.  693,  36  L.  ed. 
450. 


J 


DECISION  OF  CONSTITUTIONAL  QUESTIONS.  369 

but  we  have  already  seen^^  that  the  court  has  declared 
unconstitutional  under  the  equal  protection  provision  of 
the  Fourteenth  Amendment  a  statute  which  imposed  upon 
railroads  and  railroad  employees  who  should  exact  higher 
rates  than  were  ordained  by  the  state  penalties  which 
would  be  so  large  in  the  aggregate  that  the  railroads  and 
their  employees  would  comply  with  the  statutes  and  or- 
ders relating  to  rates  rather  than  contest  the  validity  of 
the  rates  in  actions  at  law. 

A  provision  prohibiting  excessive  fines  and  cruel  and 
unusual  punishments  also  appears  in  the  Philippine  bill 
of  rights,  and  under  it  the  court  has  declared  invalid  a 
section  of  the  penal  code  of  the  islands  and  a  sentence 
pronounced  under  it  which  imposed  upon  an  officer  of  the 
government  for  making  false  entries  in  public  records  as 
to  payments  of  six  hundred  and  twelve  pesos  a  fine  of 
four  thousand  pesos  and  cadena  temporal  for  twelve 
years,  with  accessories  including  the  carrying  of  chains, 
perpetual  disqualification  from  holding  public  office  and 
perpetual  surveillance.^^ 

DECISION  OF  CONSTITUTIONAL  QUESTIONS. 

Questions  which  may  be  brought  before  the  court. 

216.  As  the  court  has  no  power  to  declare  a  statute  in- 
valid unless  it  clearly  violates  a  provision  of  the  Consti- 
tution,^'^ such  questions  as  whether  a  statute  violates  na- 
tural justice  or  kindred  principles  may  not  properly  be 

64  Sec.  145,  supra. 

esWeems  v.  United  States  (1910)  217  U.  S.  349,  30  Sup.  Ct.  544,  54  L. 
ed.  793.  See  217  U.  S.  at  366,  367,  382,  30  Sup.  Ct.  at  548,  549,  555,  54  L. 
ed.  at  798,  799,  805.  Compare  Schofield,  Cruel  and  Unusual  Punishment,  5 
111.  L.  Rev.  321. 

66  See  sees.  94,  supra,  and  217,  infra. 
24 


370  LIMITATIONS  UPON   FEDERAL  JUDICIAL  POWER. 

considered  by  the  court.^'^  Moreover,  it  is  an  established 
principle  that  if  a  state  court  has  decided  that  a  state 
statute  or  the  action  of  an  organ  of  state  government  is  in 
accord  with  the  state  constitution  that  decision  cannot  be 
reviewed  by  the  Supreme  Court.^^ 

The  court  also  refuses  to  pass  upon  a  constitutional 
question  unless  its  solution  is  necessary  for  the  decision 
of  an  actual  case  then  before  the  court.^^  In  determining 
the  constitutionality  of  a  statute  the  court  considers  only 
so  much  of  the  statute  as  applies  in  that  particular  case  J*^ 

67  See  sees.  98-103,  113,  supra. 

68  Sec.  63,  supra. 

69  Hampton  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (1913)  227  U.  S.  456,  468, 
33  Sup.  Ct.  263,  267,  57  L.  ed.  596,  and  cases  there  cited;  Grenada  L.  Co. 
V.  Mississippi  (1910)  217  U.  S.  433,  30  Sup.  Ct.  535,  54  L.  ed.  826;  Wood 
V.  Chesborough  (1913)  228  U.  S.  672,  33  Sup.  Ct.  706,  57  L.  ed.  1018;  Adams 
V.  Russell  (1913)  229  U.  S.  353,  33  Sup.  Ct.  846,  57  L.  ed.  1224;  authori- 
ties in  note  75,  infra;  Thayer,  The  Origin  and  Scope  of  the  American  Doc- 
trine of  Constitutional  Law,  7  Harv.  L.  Rev.  135-137,  reprinted  in  TTiayer, 
Legal  Essays,  8-10;  McClain,  Constitutional  Law  in  the  United  States,  19 
et  seq.;  Willoughby  on  the  Constitution,  pp.  13,  14;  Patterson,  The  United 
States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  228 ;  Black,  Consti- 
tutional Law,  3d  ed.,  pp.  63,  65.  In  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman 
(1892)  143  U.  S.  339,  345,  12  Sup.  Ct.  400,  402,  30  L.  ed.  176,  the  court 
said,  "Whenever,  in  pursuance  of  an  honest  and  actual  antagonistic  asser- 
tion of  rights  by  one  individual  against  another,  there  is  presented  a  ques- 
tion involving  the  validity  of  any  act  of  any  legislature,  state  or  federal, 
and  the  decision  necessarily  rests  on  the  competency  of  the  legislature  to  so 
enact,  the  court  must,  in  the  exercise  of  its  solemn  duties,  determine 
whether  the  act  be  constitutional  or  not;  but  such  an  exercise  of  power  is 
the  ultimate  and  supreme  function  of  courts.  It  is  legitimate  only  in  the 
last  resort,  and  as  a  necessity  in  the  determination  of  real,  earnest  and 
vital  controversy  between  individuals.  It  never  was  the  thought  that,  by 
means  of  a  friendly  suit,  a  party  beaten  in  the  legislature  could  transfer 
to  the  courts  an  inquiry  as  to  the  constitutionality  of  the  legislative  act." 
The  same  question  is  discussed  at  much  greater  length  in  Muskrat  v.  United 
States   (1911)  219  U.  S.  346,  31  Sup.  Ct.  250,  55  L.  ed.  246. 

70  Grenada  L.  Co.  v.  Mississippi  (1910)  217  U.  S.  433,  30  Sup.  Ct.  535, 
54  L.  ed.  826;  Southwestern  Oil  Co.  v.  Texas  (1910)  217  U.  S.  114,  30  Sup. 
Ct.  496,  54  L.  ed.  688;  United  States  v.  Delaware  &  H.  Co.  (1909)  213  U.  S. 
366,  29  Sup.  Ct.  527,  53  L.  ed.  836.  And  see  Chesapeake  &  O.  Ry.  Co.  v. 
Conley  (1913)  230  U.  S.  513,  33  Sup.  Ct.  985,  57  L.  ed.  1597. 


DECISION  OF  CONSTITUTIONAL  QUESTIONS.  371 

11  the  constitutional  provision  which  is  invoked  was  not 
intended  primarily  for  the  protection  of  the  party  before 
the  court,  the  court  will  not  inquire  into  the  validity  of 
the  governmental  action  J  ^  So  also  if  it  appears  that  the 
controversy  in  issue  has  been  settled  the  case  will  be  dis- 
missedJ^  And  in  a  case  coming  from  a  state  court  the  Su- 
preme Court  will  not  pass  upon  a  constitutional  question 
unless  it  has  been  raised  in  the  court  below  as  required  by 
the  judiciary  act.^^ 

We  have  already  examined  at  sufficient  length  the  ques- 
tion whether  a  party  may  estop  itself  from  contesting  the 

71  Darnell  v.  Indiana  (1912)  226  U.  S.  390,  398,  33  Sup.  Ct.  120,  57  L. 
ed.  267;  Hampton  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (1913)  227  U.  S.  456, 
468,  33  Sup.  Ct.  263,  267,  57  L.  ed.  596;  Interstate  Com.  Comn.  v.  Chi- 
cago, R.  L  &  P.  Ry.  Co.  (1910)  218  U.  S.  88,  30  Sup.  Ct.  651,  54  L.  ed. 
946;  Citizens  Nat.  Bk.  v.  Kentucky  (1910)  217  U.  S.  443,  30  Sup.  Ct.  532, 
54  L.  ed.  832;  Grenada  L.  Co.  v.  Missisippi  (1910)  217  U.  S.  433,  30  Sup. 
Ct.  535,  54  L.  ed.  826;  Smith  v.  Indiana  (1903)  191  U.  S.  138,  24  Sup.  Ct. 
51,  48  L.  ed.  125;  Berea  College  v.  Kentucky  (1908)  211  U.  S.  45,  29  Sup. 
Ct.  33,  53  L.  ed.  81;  United  States  v.  Chandler-Dunbar  Co.  (1913)  229  U. 
S.  53,  73,  74,  33  Sup.  Ct.  667,  676,  57  L.  ed.  1063;  Patterson,  The  United 
States  and  the  States  Under  the  Constitution,  2d  ed.,  p.  228;  Black,  Con- 
stitutional Law,  3d  ed.,  pp.  63,  65. 

72  United  States  v.  Evans  (1909)  213  U.  S.  297,  29  Sup.  Ct.  507,  53  L. 
ed.  803;  Fisher  v.  Baker  (1906)  203  U.  S.  174,  27  Sup.  Ct.  135,  51  L.  ed. 
142;  American  B.  Co.  v.  Kansas  (1904)  193  U.  S.  49,  23  Sup.  Ct.  394,  48 
L.  ed.  613.  See  also  Muskrat  v.  United  States  (1911)  219  U.  S.  346,  31 
Sup.  Ct.  250,  55  L.  ed.  246.  Where,  however,  any  liability  remains  the 
question  cannot  be  treated  as  a  moot  one:  Southern  P.  Co.  v.  Interstate 
Com.  Comn.  (1911)  219  U.  S.  433,  31  Sup.  Ct.  288,  55  L.  ed.  283.  See  also 
Southern  P.  T.  Co.  v.  Interstate  Com.  Comn.  (1911)  219  U.  S.  498,  31  Sup. 
Ct.  279,  55  L.  ed.  310. 

73  Act  Mar.  3,  1911,  sec.  237.  See  In  the  Matter  of  Spencer  (1913)  228 
U.  S.  652,  33  Sup.  Ct.  709,  57  L.  ed.  1010;  Thomas  v.  Iowa  (1908)  209  U. 
S.  258,  28  Sup.  Ct.  487,  52  L.  ed.  782;  Walker  v.  Sauvinet  (1875)  92  U.  S. 
90,  93,  23  L.  ed.  678;  42  Am.  L.  Rev.  645-647;  and  also  Mackay  v.  Uinta 
D.  Co.  (1913)  229  U.  S.  173,  33  Sup.  Ct.  638,  57  L.  ed.  1138;  Dill  v.  Ebey 
(1913)  229  U.  S.  199,  33  Sup.  Ct.  620,  57  L.  ed.  1148.  Compare  Weems  v. 
United  States  (1910)  217  U.  S.  349,  3G2,  30  Sup.  Ct.  544,  547,  54  L. 
ed.  793. 


372         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

validity  of  a  statute  under  which  that  party  has  actedJ^ 

Rules  of  construction. 

217.  In  a  number  of  cases  the  court  has  taken  the  posi- 
tion that  ''Every  possible  presumption  is  in  favor  of  the 
validity  of  a  statute,  and  this  continues  until  the  contrary- 
is  shown  beyond  a  rational  doubt."  "^  And  this  position 
is  unquestionably  sound.  It  is  true  that  in  recent  years 
with  increasing  frequency  the  court  has  declared  legisla- 
tion unconstitutional  without  showing  clearly  the  connec- 
tion between  its  conclusion  and  the  words  of  the  Constitu- 
tion upon  which  that  conclusion  was  said  to  be  based.''^ 
It  is  true  that  state  and  lower  federal  courts  have  de- 
clared legislation  unconstitutional  with  even  greater  free- 
dom. But  such  a  tendency  cannot  continue.  It  is  causing 
a  widespread  distrust  of  the  courts,  and  that  distrust  is 

74  Sec.  22,  supra.  Consider  also  Los  Angeles  v.  Los  Angeles  C.  W.  Co. 
(1900)  177  U.  S.  558,  20  Sup.  Ct.  736,  44  L.  ed.  886;  Covington  &  L.  T.  R. 
Co.  V.  Sandford  (1896)  164  U.  S.  578,  17  Sup.  Ct.  198,  41  L.  ed.  560; 
Allen  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (1913)  230  U.  S.  553,  33  Sup.  Ct. 
1030,  57  L.  ed.  1625;  Missouri  Rate  Cases— Knott  v.  Chicago,  B.  &,  Q.  R. 
Co.   (1913)  230  U.  S.  474,  33  Sup.  Ct.  975,  57  L.  ed.  1571. 

75  Sinking  Fund  Cases  (1878)  99  U.  S.  700,  718,  25  L.  ed.  496.  See  also 
authorities  cited  in  sec.  94,  supra. — Where  two  interpretations  of  a  statute 
are  admissible,  under  one  of  which  the  statute  is  constitutional  and  under 
the  other  of  which  it  is  unconstitutional,  the  former  interpretation  of  the 
statute  must  be  adopted:  The  Abby  Dodge  (1912)  223  U.  S.  166,  175,  32 
Sup.  Ct.  310,  312,  56  L.  ed.  390;  United  States  v.  Delaware  &  H.  Co.  (1909) 
213  U.  S.  366,  407,  29  Sup.  Ct.  527,  535,  53  L.  ed.  836;  Harriman  v.  Inter- 
state Com.  Comn.  (1908)  211  U.  S.  407,  29  Sup.  Ct.  115,  53  L.  ed.  253; 
Knights  T.  L  Co.  v.  Jarman  (1902)  187  U.  S.  197,  23  Sup.  Ct.  108,  47  L. 
ed.  139.  Compare  James  v.  Bowman  (1903)  190  U.  S.  127,  23  Sup.  Ct. 
678,  47  L.  ed.  979;  and  the  language  of  White,  J.,  in  Employers'  Liability 
Cases— Howard  v.  Illinois  C.  R.  Co.  (1908)  207  U.  S.  463,  501,  28  Sup.  Ct. 
141,  146,  52  L.  ed.  297.  The  court  follows  the  interpretation  of  a  state 
statute  which  has  been  adopted  by  the  state  court:  Portland  Ry.,  L.  &  P. 
Co.  V.  Railroad  Comn.  of  Oregon  (1913)  229  U.  S.  397,  33  Sup.  Ct.  827,  57 
L.  ed.  1248;  and  see  note  47  in  Chapter  3,  supra. 

76  See  especially  Chapters  3  and  4,  supra. 


DECISION  OF  CONSTITUTIONAL  QUESTIONS.  373 

growing;  '^'^  so  that  unless  the  courts  when  they  overturn 
the  will  of  the  majority  conform  to  the  rule  which  they 
have  themselves  recognized  ^^  and  show  clearly  that  such 
decisions  are  required  by  the  Constitution  itself,  that  ma- 
jority will  before  long  take  pains  to  secure  the  observ- 
ance by  the  courts  of  the  constitutional  limits  to  judicial 
authority.^  ^ 

Where  technical  terms  are  used  in  the  Constitution  it 
is  the  duty  of  the  court  to  interpret  those  terms  in  ac- 
cordance with  their  technical  meanings.^"  Thus,  where  a 
term  of  the  common  law  is  used  it  is  to  be  given  the  same 
meaning  as  it  had  at  common  law.^^ 

The  history  of  a  provision  ^^  and  its  context  ^^  often  go 
far  towards  showing  its  meaning;  and  the  fact  that  under 
a  particular  interpretation  another  clause  of  the  Constitu- 
tion would  be  superfluous  certainly  tends  to  show  that 
that  interpretation  is  incorrect,^^  although  it  is  not  con- 
clusive upon  that  point.^^ 

The  antecedent  history  of  the  country  and  the  state  of 

77  See,  for  example,  in  Chapter  4,  notes  58,  118,  and  ends  of  notes  80,  207, 
212;  in  Chapter  3,  notes  61,  62,  73;  article  21  Yale  L.  J.  117;  language  of 
Harlan,  J.,  reported  in  68  Legal  Intelligencer,  p.  318,  col.  4. 

78  See  note  75,  supra. 

79  See  note  116  in  Chapter  4,  supra. 

80  The  term  "admiralty"  has,  however,  been  given  a  broader  meaning 
than  it  had  before  the  adoption  of  the  Federal  Constitution:  see  Patterson, 
The  United  States  and  the  States  Under  the  Constitution,  2d  ed.,  pp.  208, 
209. 

81  See  Schick  v.  United  States  (1904)  195  U.  S.  65,  69,  24  Sup.  Ct.  826, 
827,  49  L.  ed.  99,  where  the  authorities  are  collected,  and  also  South  Caro- 
lina V.  United  States  (1905)  199  U.  S.  437,  449,  450,  26  Sup.  Ct.  110,  111, 
112,  50  L.  ed.  261.     Compare  sec.  83,  supra. 

82  See  note  86,  infra;  and  sees.  75-81,  128,  131,  supra.  Compare,  e.  g., 
Wigmore,  Evidence,  p.  3126,  V,  230. 

83  See  sees.  127,  2,  74,  supra. 

84  See  sec.  126,  supra.     Compare  sec.  146,  supra. 

85  See  sec.  88,  supra. 


374         LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

public  affairs  at  the  time  of  the  adoption  of  the  Constitu- 
tion must  be  considered,  in  order  that  the  old  law,  the 
mischief  and  the  remedy  may  have  their  relative  weight.^^ 
"No  court  of  justice  can  be  authorized  so  to  construe  any 
clause  of  the  Constitution  as  to  defeat  its  obvious  ends, 
when  another  construction,  equally  accordant  with  the 
words  and  sense  thereof,  will  enforce  and  protect  them."^'^ 
In  case  of  doubt  ^^  as  to  the  meaning  of  a  provision,  a 
contemporaneous  legislative  exposition  acquiesced  in  for 
a  long  term  of  years  fixes  the  construction.^^  So  also, 
while  the  Federalist  is  not  of  binding  authority,  and  was 
not  in  fact  so  regarded  in  reaching  the  unfortunate  de- 
cision in  Chisholm  v.  Georgia,''"  "The  opinion  of  the  Fed- 
eralist has  always  been  considered  as  of  great  author- 
ity." ^^ 

86Prigg  V.  Pennsylvania  (1842)  16  Pet.  539,  611,  612,  10  L.  ed.  1060; 
Patterson,  The  United  States  and  the  States  Under  the  Constitution,  2d 
ed.,  p.  234;  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  602,  20  Sup.  Ct.  448, 
494,  456,  44  L.  ed.  597;  Rhode  Island  v.  Massachusetts  (1838)  12  Pet.  657, 
9  L.  ed.  1233.    See  also  sec.  74,  supra;  and  sec.  55,  note,  supra. 

87Prigg  V.  Pennsylvania  (1842)  16  Pet.  539,  612,  10  L.  ed.  1060. 

88  On  this  limitation  to  the  statement  see  authorities  collected  in  Fair- 
bank  V.  United  States  (1901)  181  U.  S.  283,  308  et  seq.,  21  Sup.  Ct.  648, 
658  et  seq.,  45  L.  ed.  862. 

89  See  authorities  collected  in  Fairbank  v.  United  States,  cited  in  note  88, 
supra;  language  of  Brown,  J.,  in  Downes  v.  Bidwell  (1901)  182  U.  S.  244, 
249,  21  Sup.  Ct.  770,  772,  45  L.  ed.  1088;  and  also  Degge  v.  Hitchcock 
(1913)  229  U.  S.  162,  33  Sup.  Ct.  639,  57  L.  ed.  1135. 

90  (1793)  2  Dall.  419,  1  L.  ed.  440.    See  sec.  204,  supra. 

91  Cohens  v.  Virginia  (1821)  6  Wheat.  264,  418,  5  L.  ed.  257.  On  the 
debates  in  the  Convention  of  1787  see  also  United  States  v.  Union  P.  R.  Co. 
(1875)  91  U.  S.  72,  79,  23  L.  ed.  224;  McCulloch  v.  Maryland  (1819)  4 
Wheat.  316,  404,  4  L.  ed.  579;  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  601, 
602,  20  Sup.  Ct.  448,  494,  456,  44  L.  ed.  597;  Patterson,  The  United  States 
and  the  States  Under  the  Constitution,  2d  ed.,  pp.  236,  237;  Brown,  J.,  in 
Downes  v.  Bidwell  (1901)  182  U.  S.  244,  254,  21  Sup.  Ct.  770,  774,  45  L.  ed. 
1088.  And  see  Pennsylvania  R.  Co.  v.  International  C.  M.  Co.  (1913)  230 
T\  S.  184,  33  Sup.  Ct.  893,  57  L.  ed.  1446;  Omaha  &  C.  B.  S.  Ry.  Co.  v. 
l.:terstate  Com.  Comn.  (1913)  230  U.  S.  324,  33  Sup.  Ct.  890,  57  L.  ed.  1501. 


DECISION  OF  CONSTITUTIONAL  QUESTIONS.  375 

The  court,  however,  does  not  always  interpret  strin- 
gently the  limitations  upon  state  action  which  are  con- 
tained in  the  Federal  Constitution.  It  recognizes  the  fact 
that  it  cannot  carry  out  a  constitution  with  mathematical 
nicety  to  logical  extremes;  ^^  and  it  does  not  make  ex- 
treme interpretations  in  order  to  set  aside  state  action 
which  does  not  appear  to  the  court  to  be  unreasonable. 

Partial  unconstitutionality. 

218.  Even  where  a  statute  is  in  part  unconstitutional, 
if  such  part  may  be  eliminated  and  yet  leave  a  statute  so 
far  complete  that  the  court  may  believe  that  the  legisla- 
ture would  have  enacted  the  statute  even  without  the  part 
which  is  unconstitutional,  that  remainder  of  the  statute 
may  be  enforced.^^  But  where  the  unconstitutional  fea- 
tures of  the  statute  are  so  far  connected  with  its  general 
scope  that  without  them  the  court  cannot  give  effect  to 
the  real  purpose  for  which  the  statute  was  enacted  the 
statute  is  unenforceable.^^     The  court  cannot  reshape  a 

92  See  sees.  110,  139,  note,  140,  note,  101,  supra. 

93  Southern  P.  Co.  v.  Campbell  (1913)  230  U.  S.  537,  33  Sup.  Ct.  1027, 
57  L.  ed.  1610;  Kentucky  U.  Co.  v.  Kentucky  (1911)  219  U.  S.  140,  31  Sup. 
Ct.  171,  55  L.  ed.  82;  Berea  College  v.  Kentucky  (1908)  211  U.  S.  45,  29 
Sup.  Ct.  33,  53  L.  ed.  81;  Pollock  v.  Farmers'  L.  &  T.  Co.  (1895)  158  U.  S. 
601,  15  Sup.  Ct.  912,  39  L.  ed.  1108;  Presser  v.  Illinois  (1886)  116  U.  S. 
252,  6  Sup.  Ct.  580,  29  L.  ed.  615;  Packet  Co.  v.  Keokuk  (1877)  95  U.  S. 
80,  24  L.  ed.  377.  See  also  Minnesota  Rate  Cases — Simpson  t.  Shepard 
(1913)  230  U.  S.  352,  380,  381,  33  Sup.  Ct.  729,  732,  733,  57  L.  ed.  1511. 

94  International  T.  Co.  v.  Pigg  (1910)  217  U.  S.  91,  30  Sup.  Ct.  481,  54 
L.  ed.  678;  Employers'  Liability  Cases — Howard  v.  Illinois  C.  R.  Co.  (1908) 
207  U.  S.  463,  28  Sup.  Ct.  141,  52  L.  ed.  297 ;  Pollock  v.  Farmers'  L.  &  T. 
Co.  (1895)  158  U.  S.  601,  15  Sup.  Ct.  912,  39  L.  ed.  1108;  Baldwin  v.  Franks 
(1887)  120  U.  S.  678,  7  Sup.  Ct.  656,  763,  30  L.  ed.  766;  Spraigue 
V.  Thompson  (1886)  118  U.  S.  90,  6  Sup.  Ct.  988,  30  L.  ed.  115;  Virginia 
Coupon  Cases— Poindexter  v.  Greenhow  (1885)  114  U.  S.  270,  5  Sup.  Ct. 
903,  29  L.  ed.  185;  Allen  v.  Louisiana  (1880)  103  U.  S.  80,  26  L.  ed.  318; 
Trade  Mark  Cases  (1879)  100  U.  S.  82,  25  L.  ed.  550;  Black,  Constitutional 
Law,  3d  ed.,  p.  73. 


376  LIMITATIONS  UPON  FEDERAL  JUDICIAL  POWER. 

statute  which  is  unconstitutional  into  one  which  is  con- 
stitutional simply  because  the  legislature  might  constitu- 
tionally have  dealt  with  some  of  the  subjects  which  are  in- 
cluded in  that  statute.*^ 

There  are  also  a  number  of  other  cases,  to  which  we 
have  already  referred,^^  in  which  the  court  has  decided 
that  a  statute  which  limited  the  rate  of  charges  could 
not,  because  of  economic  conditions,  be  enforced  at  one 
time,  although  the  statute  might  later,  through  a  change 
in  economic  conditions,  become  enforceable,  or  in  which 
the  court  has  sustained  the  enforcement  of  a  statute  with- 
out prejudice  to  the  right  of  the  complainant  to  reopen 
the  case  if  experience  should  prove  the  operation  of  the 
statute  to  be  confiscatory.^^  The  mere  fact  that  a  statute 
itself  is  constitutional  does  not  oust  the  court  of  jurisdic- 
tion to  restrain  unconstitutional  applications  of  that 
statute.^^    And  even  where  a  statute  may  be  properly  en- 

95  Butts  V.  Merchants  &  M.  T.  Co.  (1913)  230  U.  S.  126,  33  Sup.  Ct.  964, 
57  L.  ed.  1422;  Meyer  v.  Wells,  Fargo  &  Co.  (1912)  223  U.  S.  298,  32  Sup. 
Ct.  218,  56  L.  ed.  445;  James  v.  Bowman  (1903)  190  U.  S. '127,  23  Sup.  Ct. 
678,  47  L.  ed.  979;  Trade  Mark  Cases  (1879)  100  U.  S.  82,  25  L.  ed.  550; 
United  States  v.  Reese  (1875)  92  U.  S.  214,  23  L.  ed.  563.  See  also  Siler 
V.  Louisville  &  N.  R.  Co.  (1909)  213  U.  S.  175,  29  Sup.  Ct.  451,  53  L.  ed. 
753.  Compare  El  Paso  &  N.  E.  Ry.  Co.  v.  Gutierrez  (1909)  215  U.  S.  87, 
30  Sup.  Ct.  21,  54  L.  ed.  106,  with  Employers'  Liability  Cases — Howard 
V.  Illinois  C.  R.  Co.   (1908)   207  U.  S.  463,  28  Sup.  Ct.  141,  52  L.  ed.  497. 

96  Sec.  179,  supra. 

97  See  Missouri  Rate  Cases— Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913)  230 
U.  S.  474,  508,  33  Sup.  Ct.  975,  983,  57  L.  ed.  1571;  Minnesota  Rate  Cases- 
Simpson  V.  Shepard  (1913)  230  U.  S.  352,  473,  33  Sup.  Ct.  729,  769,  57  L. 
ed.  1511;  Northern  P.  Ry.  Co.  v.  North  Dakota  (1910)  216  U.  S.  579,  30 
Sup.  Ct.  423,  54  L.  ed.  624;  Willcox  v.  Consolidated  G.  Co.  (1909)  212  U. 
S.  19,  29  Sup.  Ct.  192,  53  L.  ed.  382;  Knoxville  v.  Knoxville  W.  Co. 
(1909)  212  U.  S.  1,  29  Sup.  Ct.  148,  53  L.  ed.  371;  and  also  Allen  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  (1913)  230  U.  S.  553,  33  Sup.  Ct.  1030,  57 
L.  ed.  1625. 

98 Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  14  Sup.  Ct. 
1047,  38  L.  ed.  1014. 


DECISION  OF  CONSTITUTIONAL  QUESTIONS.  377 

forced  against  some  roads  it  may  at  the  same  time  be 
unenforceable  as  against  other  roads,^^ 

99  See,  e.  g.,  Missouri  Rate  Cases — Knott  v.  Chicago,  B.  &  Q.  R.  Co.  (1913) 
230  U.  S.  474,  33  Sup.  Ct.  975,  57  L.  ed.  1571;  Minnesota  Rate  Cases- 
Simpson  V.  Shepard  (1913)  230  U.  S.  352,  33  Sup.  Ct.  729,  57  L.  ed.  1511; 
8t.  Louis  &  S.  F.  R.  Co.  v.  Hadley   (1909)    168  Fed.  317. 


TABLE   OF   CASES. 


References  are  to  Pages. 

A. 

Abbott  V.  Beddingfield,  125  N.  C.  256 53,  187,  188 

Abby  Dodge,  The,  223  U.  S.  166  2,  372 

Abilene  C.  O.  Ck).  v.  Texas  &  P.  Ry.  Co.,  38  Tex.  Civ.  App.  366   56 

Abilene  Nat.  Bk.  v.  Dolley,  228  U.  S.  1    331 

Adair  v.  United  States,  208  U.  S.  161   ..  .115,  121,  126,  139,  204,  208,  245 

Adams  v.  Russell,  229  U.  S.  353    370 

Adams  Ex.  Co.  v.  Croninger,  226  U.  S.  491    13 

Adams  Ex,  Co.  v.  Kentucky,  214  U.  S.  218   217 

Adams  Ex.  Co.  v.  Kentucky,  206  U.  S.  129    25 

Adams  Ex.  Co.  v.  Ohio,  165  U.  S.  194   134,  179 

Addyston  P.  &  S.  Co.  v.  United  States,  175  U.  S.  211    16,  245 

Advances  in  Rates,  In  re— Eastern  Case,  20  I.  C.  C.  243   276,  299 

Advances  in  Rates,  In  re— Western  Case,  20  I.  C.  C.  307 277,  320 

Alabama  &  V.  Ry.  Co.  v.  Mississippi  R.  Comn.,  203  U.  S.  496  .  .226,  264,  310 

Alcorn  v.  Hamer,  38  Miss.  652   89 

Allegheny  v.  Millville,  E.  &  S.  S.  Ry.  Co.,  159  Pa.  411 39 

Allen  v.  Georgia,  166  U.  S.  138   200 

Allen  v.  Louisiana,  103  U.  S.  80    375 

Allen  V.  Pullman's  P.  C.  Co.,  191  U.  S.  171    16 

Allen  V.  Riley,  203  U.  S.  347    30,  80,  218 

Allen  V.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  230  U.  S.  553  . .  188,  293,  304,  372,  376 

Allen  &  Lewis  v.  Oregon  R.  &  N.  Co.,  106  Fed.  265    9 

Allgeyer  v.  Louisiana,  165  U.  S.  578  122,  139,  196,  245,  246 

Allnutt  V.    Inglis,    12    East,    527    66 

Aluminum  Co.   v.   Ramsey,   222   U.   S.   251    256 

American  B.  Co.  v.  Kansas,  193  U.  S.  49   371 

American  B.  Co.  v.  United  F.  Co.,  213  U.  S.  347    2,  206 

American  Ex.  Co.  v.  Mullins,  212  U.  S.  311    146 

American  Ex.  Co.  v.  United  States,  212  U.  S.  522   8 

American  L.  Co.  v.  Zeiss,  219  U.  S.  47   137,  138,  199,  204,  209,  210 

American  P.  Co.  v.  Fisher,  166  U.  S.  464   363 

American  S.  R.  Co.  v.  Delaware,  L.  &  W.  Ry.  Co.,  200  Fed.  652   30 

American  S.  &  R.  Co.  v.  Colorado,  204  U.  S.  103 39,  330,  334 

American  S.  &  W.  Co.  v.  Speed,  192  U.  S.  500   4 

Ames  V.  Union  P.  Ry.   Co.,   64   Fed.    165    263,  293 

Anderson  v.  Levely,   58   Md.    192    61 

Anderson  v.  Manchester  F.  A.  Co.,  59  Minn.   182    63 

Angle  V.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  151  U.  S.  1    179 

379 


380 


TABLE  OF  CASES. 


RefEBENCES    ABE    TO    PaGES. 

Annan  v.  Walsh,  143  U.  S.  517  32 

Ansley  v.  Ainsworth,  4  Ind.  Terr.  308    51,     89 

Appeal  of  City  of  Pittsburgh,  115  Pa.  4   39 

Appleby  v.   Buffalo,   221    U.   S.   524    145,  229 

Arbuckle  v.  Blackburn,  191  U.  S.  405 123 

Arbuckle  v.  Pflaeging,  20  Wyo.,  123  Pac.  918   83 

Arkadelphia  E.  L.  Co.,  v.  Arkadelphia,  99  Ark.   178    315 

Arkansas  Railroad  Rates,  In  re,   168  Fed.   720    281,  293,  304 

Arkansas  Railroad  Rates,  In  re,   163   Fed.   141    316 

Arkansas  Rate  Cases,  In  re,  187  Fed.  290  .  .278,  289,  293,  302,  303,  304,  317 
Armour  P.  Co.  v.  United  States,  209  U.  S.  56 

9,  26,  29,  30,  190,  344,  350,  352,  362 

Armour  P,  Co.  v.  United  States,  153  Fed.   1    350 

Arms  V.  Ayer,  192  111.  601    83 

Arndt   v.   Griggs,    134   U.   S.    316    196 

Arnett    v.    State,    168    Ind.    180     96 

Arrowsmith  v.  Harmoning,  118  U.  S.  194   130,  145 

Arwine  v.   Board  of  Medical  Examrs.,   151   Cal.   499    82 

Asbell  V.  Kansas,  209  U.  S.   251    218 

Ashley    v.    Ryan,    153    U.    S.    628     205 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co.,  110  U.  S.  667  105 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Matthews,  174  U.  S.  96   141,  258 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  O'Connor,  223  U.  S.  280   357 

Atchison,  T.  &  S.  F,  Ry.  Co.  v.  Sowers,  213  U.  S.  55    206 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Sullivan,  173  Fed.  456  287 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States,  203  Fed.  56   324,  326 

Atkin  V.   Kansas,   191  U.   S.   207    190 

Atlantic  E.  Co.  v.  Wilmington  &  W.  R.  Co.,  Ill  N.  C.  463  ...  47,  61,  66 
Atlantic  C.  L.  R.  Co.  v.  Florida,  203  U.  S.  256  .  .21,  127,  261,  295,  309,  324 

Atlantic  C.  L.  R.  Co.  v.  Macon  G.  Co.,  166  Fed.  206   110 

Atlantic  C.  L.  R.  Co.  v.  Mazursky,  216  U.  S.  122   13 

Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Comn.,  206  U.  S.   1 

59,  81,   145,  207,  209,  210,  325,  326 

Atlantic  C.  L.  R.  Co.  v.  Riverside  Mills,  219  U.  S.  186 54,     56,  245 

Atlantic  E.  Co.  v.  Wilmington  &  W.  R.  Co.,  Ill  N.  C.  463  ...  .47,  61,     66 

Atlantic  &  P.  T.  Co.  v.  Philadelphia,  190  U.  S.  160 5,     33 

Augusta  S.  R.  Co.  v.  Wrightsville  &  T.  R.  Co.,  74  Fed.  522   26 

Austin  V.  Tennessee,  179  U.  S.  343  24,     30 

Ayers,  In  re,  123  U.  S.  443   357 

Ayer  &  Lord  T.  Co.  v.  Kentucky,  202  U.  S.  409    205 

B. 

Bachtel  v.  Wilson,  204  U.  S.  36  257,  259 

Back  R.  N.  T.  Co.  v.  Romberg,  96  Md.  430  230,  314 

Backus  v.  Fort  S.  U.  D.  Co.,  169  U.  S.  557 

123,  127,  134,  145,  179,  199,  229,  230,  364 


TABLE  OF  CASES.  381 

KeFEBENCES    ABE    TO    PaGES. 

Bacon  v.  Illinois,  227  U.  S.  504  23,     24,  206 

Bacon  v.  Robertson,   18  How,  480    346 

Bacon  v.  Texas,  163  U.  S.  207   334 

Bacon  v.  Walker,  204  U.  S.  311  141,  177,  178,  217,  218,  239,  328 

Bailey  v.  Alabama,  219  U.  S.  219    210 

Bailey  v.  State,    161    Ala.    75    61 

Baker  v.  Norwood,   74   Fed.   997    230,  238 

Baldwin    v.    Franks,    120   U.    S.    678    375 

Ball   V.   Rutland   R.    Co.,    93    Fed.    513    339 

Ballard   v.   Hunter,   204   U.   S.   241    132,  133,  137,  140,  145,  200 

Ballman    v.    Fagan,    200    U.    S.    186     365 

Baltimore  T.  Co.  v.  Baltimore  B.  R.   Co.,   151  U.  S.   137    130,  145 

Baltimore  &  O.  R.  Co,  v.  Interstate  Com.  Comn.,  221  U.  S.  612 

17,  45,  245,  366 

Baltimore  &  0.  R.  Co.  v.  Railroad  Comn.,  196  Fed.  690   82 

Baltimore  &  0.  R.  Co,  v.  United  States,  215  U.  S.  481    12,  110 

Bank  of  Columbia  v,  Okely,  4  Wheat.  235    139,  184,  211,  363 

Bank  of  the  U,  S,  v.  Halstead,  10  Wheat.  51   61,     93 

Banks   v.    State,    124   Ga,    15    61 

Barbier   v,   Connolly,    113   U,    S,   27    210,  258,  259 

Barney  v.   New  York,    193   U.   S.   430    123,  124 

Barrett  v.  Indiana,  229  U.  S.  26   56,  107,  210,  260 

Barrington  v.  Missouri,  205  U.  S.  483   115,   133 

Barron    v.    Baltimore,    7    Pet.    243     236 

Barrow  S.  Co.  v.  Kane,  170  U.  S.  100 41 

Barto  V.  Himrod,  8  N.  Y.  483   63,     89 

Barton  v.  Barbour,  104  U.  S.  126    363 

Bates  &   Gould   Co.  v.   Payne,    194   U.   S.    106    113 

Bauman  v.   Ross,   167   U.   S.   548    58,  136,  313 

Beck,   Ex   parte,    162   Cal.    701    89 

Beer,  In  re,   17  N.  D.   184    365 

Behr,  Meyer  &  Co.  v.  Campbell  &  Gu  Tauco,  205  U,  S,  403   364 

Belknap  v,  Schild,  161  U,  S.  10   356,  357 

Bellingbam  B.  &  B,  C.  R.  Co.  v.  New  Whatcom,  172  U.  S.  314 137 

Bement  v.  National  H.  Co.,  186  U.  S.  70  364 

Berea  College  v.  Kentucky,  211  U.  S.  45 121,  134,  245,  345,  371,  375 

Bergemann  v.   Backer,   157  U.  S.   655    145 

Berryman  v.   Whitman   College,   222   U.   S.   334    337,  341 

Bier  V.  McGehee,  148  U,  S.  137   331,  340 

Bitterman  v.  Louisville  &  N.  R.  Co.,  207  U,  S.  205  108 

Blackstone  v.  Miller,  188  U.  S.  189  24,  331 

Blair   v.   Chicago,   201    U.    S.    400    337 

Blais  V.  Franklin,  31   R.  I.  95    95 

Blake  v.  McClung,   172  U.  S.   239    41 

Block  V.   Chicago,  239   111,   251    83 


382  TABLE  OF  CASES. 

ReFEBENCES    ABE   TO    PAGES. 

Blount  V.  Windley,  95  U.  S.   173    334 

Blue   V.   Beach,    155    Ind.    121    83 

Blue  V.  Smith,   69  W.  Va.   761    95 

Board  of  Comrs.  v.  Gwin,  136  Ind.  53   49 

Board  of  Comrs.  v.  McGregor,  171  Ind.  634  49,     61 

Board  of  Comrs.  v.  Stout,  136  Ind.  53    49 

Board  of  Harbor  Comrs.  v.  Excelsior  R.  Co.,  88  Cal.  491    63,     96 

Board  of  R.  Comrs.  v.  Oregon  Ry.  &  Nav.  Co.,  17  Ore.  65  62 

Board  of  R.  Comrs.  v.  Symns  Grocer  Co.,  53  Kan.  207  228,  271 

Boise  A.  H.  &  C.  W.  Co.  v.  Boise  City,  230  U.  S.  84 330 

Boise  A.  H.  &  C.  W.  Co.  v.  Boise  City,  213  U.  S.  276 265,  335 

Boise  City  I.  &  L.  Co.  v.  Clark,  131  Fed.  415    281,  316,  325 

Bonham  Case,  8  Coke,  114a  151 

Bonner  v.  Gorman,  213  U.  S.  86    145 

Booth  V.  Illinois,   184  U.   S.  425    245 

Boston  Chamber  of  Commerce  v.  Boston,  217  U.  S.  189 133,  134,  324 

Boston  &  M.  R.  v.  Gokey,  210  U.  S.  155    94 

Boyce,  Ex  parte,  27  Nev.  299    244 

Boyd  V.  United  States,  116  U.  S.  616  365,  367 

Boyd,   Ex   parte,    105    U.   S.    647    93 

Bradley  v.  Lightcap,    195  U.   S.    1    122 

Bradley   v.   Richmond,   227   U.   S.   477    134,  138,  261 

Bradshaw  v.  Lankford,  73  Md.  428   50 

Bradshaw  v.  Rogers,  20  Johns.  103   235 

Bradwell  v.   State,   16   Wall.   130    249 

Brady  v.  Carteret  R.  Co.,  70  N.  J.  E.  748   61 

Brady  v.  Mattern,  125  Iowa,  158   95 

Brantley  v.  Georgia,  217  U.  S.  284   360 

Brass  v.  North  Dakota,   153  U.  S.  391    33,  262 

Brenke  v.  Borough  of  Belle  Plaine,  105  Minn.  84   63 

Brig  Aurora  v.  United  States,  7  Cranch  382   86 

Briggs  V.  Lightboats,  93  Mass.  157    353 

Brinkmeier  v.  Missouri  P.  Ry.  Co.,  224  U.  S.  268   45,  133 

Bristol  V.  Bristol  &  W.  Waterworks,  23  R.  I.  274 286 

Brodbine  v.  Revere,  182  Mass.  598   51,     78 

Brodnax  v.  Missouri,  219  U.  S.  285    190,  209,  210,  212,  245 

Brooklyn  C.  R.  Co.  v.  New  York,  see  People  v.  New  Y.  S.  B.  of  T.  Comrs. 

Brooklyn  H.  R.  Co.  v.  Brooklyn  C.  R.  Co.,  109  N.  Y.  Supp.  31   303 

Brooklyn  U.  G.  Co.  v.  New  York,  111  N.  Y.  App.  Div.  70 271 

Brown  v.  Fletcher's   Estate,   210  U.   S.   82    206 

Brown  v.  Houston,    114   U,   S.   622    13 

Brown  v.  Maryland,    12    Wheat.    419    144 

Brown  v.  New  Jersey,  175  U.  S.  172  115,  132,  200 

Brown  v.  Smart,  145  U.  S.  454 331 

Brown  v.  Turner,   70   N.    C.   93    50 

Brown  v.  Walker,  161  U.  S.  591    365 


TABLE  OF  CASES.  383 

ReFEEENCES    ABE    TO    PAGES. 

Brown-Forman   Co.  v.     Kentucky,   217   U.   S.   563    258,  259 

Brownsfield  v.  South  Carolina,   189  U.  S.  426    255 

Brummitt  v.  Ogden  W.  W.  Co.,  33  Utah,  285 341 

Brunswick  &  T.  W.  Dist.  v.  Maine  W.  Co.,  99  Me.  371 

275,  276,  279,  280,  281,  283,  310,  312,  317 

Bryan  v.     Voss,   143  Ky.  422    51 

Brymer  v.  Butler  Water  Co.,  179  Pa.  231    109 

Buck  V.     Beach,  206  U.  S.  392    122,  139,  205 

Budd  V.  New  York,  143  U.  S.  517   32,  127,   141,  226,  231,  262,  263 

Buffalo  E.  S.  R.  Co.  v.  Buffalo  S.  R.  Co.,  Ill  N.  Y.  132 345 

Bull  V.  Read,  13  Gratt.    (Va.)    78    89 

Burlington,  C.  R.  &  N.  Ry.  Co.  v.  Dey,  82  Iowa,  312  66,  128 

Burt  V.  Smith,  203  U.  S.  129    132 

Burton  v.  Dupree,    19   Tex.   Civ.  App.   275    50 

Burton  v.  United  States,  202  U.  S.  344   54,  359 

Bush  V.     Kentucky,  107  U.  S.  110   255 

Butchers'  U.  Co.  v.  Crescent  C.  Co.,  Ill  U.  S.  746 

187,  195,  196,  199,  202,  247,  248 

Butte  C.  W.  Co.  V.  Baker,  196  U.  S.  119    79 

Buttfield  V.  Stranahan,  192  U.  S.  470  245 

Butts  V.  Merchants  &  M.  T.  Co.,  230  U.  S.  126  376 


Cable  V.  United  S.  L.  I.  Co.,  191  U.  S.  288   40 

Calder  v.  Bull,  3  Dall.   386    48,  191,  196,  197,  201 

Calder  v.  Michigan,  218  U.  S.  591    179.  346 

Caldwell  v.  Texas,  137  U.  S.  692 178,  211 

California  R.  Co.  v.  Sanitary  R.  Works,  199  U.  S.  306 

179,  209,  210,  212,  216,  229 

Callan  v.   Wilson,   127   U.  S.  540    362 

Calvert  v.  Carstarphen,  133  N.  C.  25    61 

Camden  I.  Ry.  Co.  v.  Catlettsburg,   129  Fed.  421    356 

Campbell  v.  California.   200    U.   S.   87    204,  217,  260 

Campbell  v.  Jackman  Bros.,  140  Iowa,  475   198 

Capital  C.  D.  Co.  v.  Ohio,  183  U.  S.  238   115 

Capital  C.  G.  Co.  v.  Des  Moines,  72  Fed.  829   277,  279,  338 

Capital  C.  G.  Co.  v.  Des  Moines,  72  Fed.  818   109,  129 

Capital  T.  Co.  v.  Hof,  174  U.  S,  1    364 

Captain  Streater,  The  Case  of,  5  How.  St.  Trials,  365   52,  166 

Carfer  v.  Caldwell,  200  U.  S.  293   48 

Cargill  Co.  v.  Minnesota,  180  U.  S.  452   133,  245 

Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401   . .    37,  116,  121,   178,  199,  257 

Carroll  v.  Wright,  131  Ga.  728   50 

Carstairs  v.  Cochran,  193  U.  S.  10   204 

Carter  v.  Texas,   177  U.   S.  442    123,  255 


384  TABLE  OF  CASES. 

ReFEBENCES    ABE    TO    PAGES. 

Gary  v.  Curtis,  3  How.  236    213 

Cary  v.  Mine  &  S.  S.  Co.,  53  Colo.  556  61 

Case  of  Captain  Streater,  The,  5  How.  St.  Trials  365 52,  166 

Castillo  V.  McConnico,   168  U.  S.  674    133 

Cates   V.   Allen,    149   U.   S.   451    363 

Cedar  Rapids  G.  L.  Co.  v.  Cedar  Rapids,  223  U.  S.  655 

262,  286,  315,  337,  364 
Cedar  Rapids  G.  L.  Co.  v.  Cedar  Rapids,  144  Iowa,  426 

275,  279,  280,  282,  283,  285,  286,  303,  315,  320 

Cedar  Rapids  W.  Co.  v.  Cedar  Rapids,  118  Iowa,  234 303,  315 

Central  of  Ga.  Ry.  Co.  v.  Railroad  Comn.,  161  Fed.  925   358 

Centralia  v.  Smith,   103   Mo.  App.   438    96 

Central  I.  W.  v.  Pennsylvania  R.  Co.,  17  Pa.  Co.  Ct.  651  108 

Central  L.  Co.  v.  Laidley,  159  U.  S.   103    145,  334 

Central  L.  Co.  v.  South   Dakota,  226   U.   S.   157    60,  257,  258,  259 

Central  of  Ga.  Ry.  Co.  v.  McLendon,  157  Fed.  961    309,  315 

Central  of  Ga.  Ry.  Co.  v.  R.  Comn.  of  Ala.,  161  Fed.  925 

63,  64,  70,  84,  89,  95,  96,  311,  312,  318 

Central  of  Ga.  Ry.  Co.  v.  Wright,  207  U.  S.  127    122,  123,  137 

Central  P.,  N.  &  E.  R.  Co.  v.  Willcox,  194  N.  Y.  383   59,  111 

Central  R.  Co.  v.  Jersey  City,  209  U.  S.  473  205 

Champion  v.  Ames,  188  U.  S.  321    54,  158,  190,  213,  245 

Chanler  v.   Kelsey,   205   U.   S.   466    134 

Chapin   v.   Fye,   179  U.   S.   127    115 

Chapman,  In  re,  166  U.  S.  661    49 

Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386   264 

Chesapeake  &  O.  Ry.  Co.  v.  Conley,  230  U.  S.  513   ...   262,  263,  266,  370 

Chesapeake  &  O.  Ry.  Co.  v.  Kentucky,  179  U.  S.  388  16 

Chesapeake  &  P.  T.  Co  v.  Manning,  186  U.  S.  238 

122,  127,  129,  135,  232,  347 

Chicago  V.  Sheldon,   9   Wall.   50    333 

Chicago  V.  Sturges,  222  U.  S.  313    134 

Chicago,  B.  &  Q.  R.  Co.  v.  Attorney-General,  Fed.  Cas.  No.  2666 263 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago, 

166  U.  S.  226   .  .    123,  127,  138,  155,  196,  229,  235,  239,  240,  241,  364 

Chicago,  B.  &  Q.  R.  Co.  v.  Cram,   228   U.   S.   70    331 

Chicago,  B.  &  Q.  R.  Co.  v.  Dey,  38   Fed.  656    315 

Chicago,  B.  &  Q.  R.  Co.  v.  Hall,  229  U.  S.  511    40,  41 

Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155  ....    75,  127,  263,  338,  344 

Chicago,  B.  &  Q.  R.  Co,  v.  Jones,    149   111.   361    66,  97 

Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  219  U.  S.  549   190,  209,  245 

Chicago,  B.  &  Q.  Ry.  Co.  v.  Babcock,  204  U.  S.  585 

179,  180,  225,  232,  290 
Cliicago,  B.  &  Q.  Ry.  Co.  v.  People,  200  U.  S.  561 

122,  139,  196,  209,  210,  215,  216,  218,  229,  236,  240,  241 

Chicago,  B.  &  Q.  Ry.  Co.  v.  United  States,  220  U.  S.  559   187 


TABLE  OF  CASES.  385 

References  are  to  Pages. 

Chicago  C.  Ry.  Co.  v.  Chicago,  142  Fed.  844 316,  325 

Chicago  D.  &  C.  Co.  v.  Fraley,    228    U.    S.    680     258,  260 

Chicago  G.  W.  Ry.  Co.  v.  Minnesota,  216  U.  S.  234  339 

Chicago,  I.  &  L.  Ry.  Co.  v.  Railroad  Comn.,  175  Ind.  630   .  .   65,  111,  112 
Chicago,  I.  &  L.  Ry.  Co.  v.  Railroad  Comn.,  38  Ind.  App.  439   .  .      65,     70 

Chicago,  I.  &  L.  Ry.  Co.  v.  United  States,  219  U.  S.  486 8,  11,  14,     40 

Chicago  J.  Ry.  Co.  v.  King,  222  U.  S.  222    45 

Chicago  L.  I.  Co.  v.  Needles,  113  U.  S.  574   346 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418 

57,  72,  123,  128,  136,  226,  227,  230,  231,  232,  242,  256,  324,  338 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Smith,  110  Fed.  473   307,  308 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins,    176   U.    S.    167 

58,  75,  123,   127,  128,  139,  191,  230,  233,  262,  293,  302,  304,  308 

Chicago,  M,  &  St.  P.  Ry.  Co.  v.  Tompkins,  90  Fed.  363 75,  109 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Arkansas,  219  U.  S.  453   ...   210,  217,  262 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hardwick  F.  E.  Co.,  226  U.  S.  446  ...      15 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ludwig,    156    Fed.    152    41 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Zernecke,  183  U.  S.  582    39 

Chicago,  St.  L.  &  P.  R.  Co.  v.  Wolcott,   141  Ind.  267    14 

Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Becker,   35    Fed.   883    326 

Chicago  U.  T,  Co.  v.  Chicago,  199  111.  579    321 

Chicago  U.  T.  Co.  v.  Chicago,   199   111.  484    309,  339 

Chicago  &  A.  R.  Co.  v.  Kirby,  225  U.  S.  155 30 

Chicago  &  G.  T.  Ry  Co.  v.  Wellman,  143  U.  S.  339 

127,  232,  303,  309,  370 
Chicago  &  N.  W.  Ry.  Co.  v.  Dey,  35  Fed.  866 

65,  66,  68,  69,  74,  303,  307,  312,  315,  323,  324 

Chinese  Exclusion  Case,  The,   130  U.  S,  581    54,  180 

Chin  Yow  v.  United  States,  208  U.  S.  8   144,  145 

Chisholm  v.  Georgia,  2  Dall.  419    354,  356,  374 

Choate  v.  Trapp,   224   U.   S.   665    122,  123,  126,  139 

Chrisman  v.   Miller,    197   U.   S.   313    364 

C.  H.  Venner  Co.  v.  Urbana  Waterworks,  174  Fed.  348   285 

Cincinnati,  H.  &  D.  Ry.  Co.  v.  Interstate  Com.  Comn.,  206  U.  S.  142  .. .  113 

Cincinnati,  I.  &  W.  Ry.  Co.  v.  Connersville,  218  U.  S.  336   115,  218 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Interstate  Com.  Comn.,  162  U.  S.  184 

9,  15,  26 

Cincinnati,  VV.  &  Z.  R.  Co.  v.  Comrs.,  1  Ohio  St.  77 89,  90 

Citizens'  Nat.  Bk.  v.  Kentucky,  217  U.  S.  443    371 

Citizens'  T.  Co.  v.  Fuller,  229  U.   S,  322    258,  260,  263 

City  V.   Lamson,    9    Wall.    477    333 

City  of  Centralia  v.  Smith,  103  Mo.  App.  438    96 

City  of  Chicago  v.  Sturges,  222  U.  S.  313    134 

City  of  Dawson  v,  Columbia  A.  S.  F.,  S.  D.,  T.  &  T.  Co.,  197  U.  S.  178  124 

City  of  Louisville  v.  Cumberland  T.  &  T.  Co.,  155  Fed.  725 124 

City  of  Memphis  v.  Cumberland  T.  &  T.  Co.,  218  U.  S.  624   124 

25 


386  TABLE  OF  CASES. 

ReFEEENCES    ABE    TO    PAGES. 

City  of  New  York  v.  Miln,  11  Pet.  102   215 

City  of  Pittsburgh,  Appeal  of,  115  Pa.  4    39 

City  of  Salem,   The,   38   Fed.   762    43 

City  of  Seattle  v.  Kelleher,    195   U.   S.   351    179 

City  of  Spokane  v.  Camp,  50  Wash.  554   87 

City  Ry.  Co.  v.  Citizens'  S.  Ry.  Co.,  166  U.  S.  557  331 

Civil  Rights  Cases,  109  U.  S.  3    124,  348 

Claiborne  Co.  v.  Brooks,  HI  U.  S.  400 48 

Clark  V.  Barnard,    108    U.    S.   436    355 

Clark  V.  Nash,  198  U.  S.  361    239 

Clark  &  Murrell  v.  Port  of  Mobile,  67  Ala.  217  86 

Clarke  v.  Rogers,  81  Ky.  43    89,     90 

Clegg  V.  St.  Louis  &  S.  F.  R.  Co.,  203  Fed.  971  30 

Clendaniel  v.  Conrad,  25  Del.,  83  Atl.  1036   95 

Cleveland  v.  Cleveland  O.  Ry.  Co.,  194  U.  S.  517    331,  335,  342 

Cleveland  v.  Cleveland  E.  Ry.  Co.,  201    U.    S.    529     331,  335,  342 

Cleveland  v.  Cleveland  E.  Ry.  Co.,  194   U.   S.   538    335 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Backus,  154  U.  S.  439 290 

Cleveland  E.  Ry.  Co,  v.  Cleveland  &  F.  C.  Ry.  Co.,  204  U.  S.  116 239 

Cleveland  G.  &  C.  Co.  v.  Cleveland,  71  Fed.  610 338 

Close  V.  Glenwood  Cemetery,  107  U.  S.  466    345 

Clyde  V.  Richmond  &  D.  R.  Co.,  57  Fed.  436   324 

Coal  &  C.  Ry.  Co.  v.  Conley,  67  W.  Va.  129  ...  .263,  266,  305,  310,  311,  312 

Coborn,  In  re,  131   Pac.  352    108 

Coe  v.  Errol,  116  U.  S.  517 22,  24,  34,     35 

Coffey  V.  County  of  Harlan,  204  U.  S.  659    53 

Cohens   v.   Virginia,   6   Wheat.   264    374 

Cole   V.   La   Grange,    113   U.   S.    1    236,  239 

Coleman  v.  Newby,  7  Kan.  82 61 

Collins   V.   New  Hampshire,    171   U.   S.   30    25 

Colorado  T.  Co.  v.  Wilmore,  129  Pac.  204    109 

Colorado  &  S.  Ry.  Co.  v.  State  R.  Comn.,  54  Colo.  64 84,     95 

Commercial  M.  A.  Co.  v.  Davis,  213  U.  S.  245    206,  364 

Commissioner  of  Railroads  v.  Wabash  R.  Co.,  126  Mich.  113, 

123  Mich.  669    20 

Commonwealth  v.  Addams,  95  Ky.  588    63 

Commonwealth  v.  Atlantic  C.  L.  R.  Co.,  106  Va.  61  327 

Commonwealth  v.  Collier,   213   Pa.    138    52 

Commonwealth  v.  Cooper,  27  Pa.  Co.  Ct.  199    83 

Commonwealth  v.  Interstate  C.  S.  Ry.  Co.,  187  Mass.  436   328 

Commonwealth  v.  King,   150  Mass.  221    43 

Commonwealth  v.  Kingsbury,  199  Mass.  542   50 

Commonwealth  v.  People's  Ex.  Co.,  201  Mass.  564   9 

Conde  v.  Schenectady,  164  N.  Y.  258  40 

Connolly  v.  Union  S.  P.  Co.,  184  U.  S.  540  254 

Consolidated  G.  Co.  v.  Mayer,    146    Fed.    150    264 


TABLE  OF  CASES.  387 

ReFEBENCES  ABE  TO   PAGES. 

Consolidated  G.  Co.  v.  New  York,  157  Fed.  849 

275,  276,  278,  279,  281,  283,  290,  311,  317 

Consolidated  R.  Co.  v.  Vermont,  207  U.  S.  541    48,  133,  207 

Consumers'  League  v.  Colorado  &  S.  Ry.  Co.,  53  Colo.  54 262,  263 

Contra  Costa  W.  Co.  v.  Oakland,  165  Fed.  518   303,  316 

Converse,  In  re,  137  U,  S.  624   145,  177,  178 

Cook  V.  Marshall  County,  196  U.  S.  261         24,     30 

Cook  V.   United   States,    138   U.   S.    157    362 

Cook  &  Wheeler  v.  Chicago,  R.  I.  &  P.  Ey.  Co.,  81  Iowa,  551 55 

Cooke  V.   Avery,    147    U.   S.   375    61 

Cooley  V.  Board  of  Wardens,  12  How.  299    6 

Cooper  V.  Schultz,  32  How.  Pr.   (N.  Y.)    107    83 

Cooper's  Case,  22  N.  Y.  67    61 

Coopersville  C.  Co.  v.  Lemon,  163  Fed.  145   84 

Corcoran  v.  Louisville  &  N.  R.  Co.,  125  Ky.  634  9,     26 

Corkran  0.  &  D.  Co.  v.  Arnaudet,  199  U.  S.  182  115 

Corporation  Comn.  v.  Seaboard  A.  L.  System,  127  N.  C.  283 66 

Corporation  Tax  Cases,  see  Flint  v.  Stone  Tracy  Co. 

Cosmopolitan  Club  v.  Virginia,  208  U.  S.  378   347 

Cotteral  v.  Barker,  34  Okla.  533  50 

Cotting  V.  Kansas  C.  S.  Y.  Co.,  183  U.  S.  79  . .    127,  254,  255,  263,  265,  274 

Coughran  v.  Bigelow,  164  U.  S.  301    363 

Coulter  V.  Louis\ille  &  N.  R.  Co.,  196  U.  S.  599   179,  180 

Counseknan  v.  Hitchcock,   142  U.  S.  547    365 

County  Comrs.,  In  re,  22  Okla.  435   96 

County  of  Mobile  v.  Kimball,  102  U.  S.  691    158,  191 

County  of  Moultrie  v.  Rockingham  T.  C.  S.  Bank,  92  U.  S.  631 

330,  334,  335 

County  of  San  Mateo  v.  Southern  P.  R.  Co.,  13  Fed.  722   346 

County  of  Santa  Clara  v.  Southern  P.  R.  Co.,  18  Fed.  385   346 

Covington  &  C.  B.  Co.  v.  Kentucky,  154  U.  S.  204 11,  27,  34,  38,     43 

Covington  &  L.  T.  R.  Co.  v.  Sandford,  164  U.  S.  578 

120,  122,  127,  232,  262,  263,  274,  301,  310,  313,  314,  339,  372 

Cowden  v.  Pacific  C.  S.  Co.,  94  Cal.  470  10 

Cox,  Ex  parte,  63  Col.  21    63,     83 

Crigler  v.   Shepler,   79   Kan.   834    334 

Cross  V.  ^Jorth  Carolina,  132  U.  S.  131    133 

Cross  L.  S.  &  F.  Club  v.  Louisiana,  224  U.  S.  632   332,  334 

Crozier  v.  Fried.  Krupp  Aktiengesellschaft,  224  U.  S.  290  272 

Cumberland  T.  &  T.  Co.  v.  Louisville,    187   Fed.  637 

275,  276,  279,  283,  285,  317,  320 

Cumberland  T.  &  T.  Co.  v.  Memphis,  200  Fed.  657    62 

Cumberland  T.  &  T.  Co.  v.  Memphis,   198  Fed.  955    331 

Cumberland  T.  &  T.  Co.  v.  Memphis,  183  Fed.  875    303,  316 

Cumberland  T.  &  T.  Co.  v.  R.  Comn.  of  La.,  156  Fed.  823   136,  317 

Cummings  v.  Missouri,  4  Wall.  277   195 


388  TABLE  OF  CASES. 

Refebences  are  to  Pages. 

Cunningham  v.  Macon  &  B.  R.  Co.,  109  U.  S.  446   357 

Cunnius  v.  Reading  Scliool  Dist.,   198  U.  S.  458    122,  204,  206,  209 

Curran  v.  Arkansas,  15  How.  304   355 

D. 

Dallcmagne  v.  Moisan,  197  U.  S.  169  41 

Danforth  v.  Groton  W,  Co.,  178  Mass.  472   216 

Daniel  Ball,  The,  10  Wall.  557  27,  28,  43 

Daniels  v.  Tearney,   102   U.  S.  415    39 

Darnell   v.   Indiana,   220   U.  S,   390    256,  371 

Dartmoutli  College  v.  Woodward,  4  Wheat.  518 181,  330,  334 

Davidson  v.  New  Orleans,  96  U.  S.  97   116,  119,   140,  152,  155,  160 

173,  174,  197,  201,  211,  230,  236,  237,  238,  239 

Davis  V.   Gray,   16   Wall.   203    334 

Dawson  v.  Columbia  A.  S.  F.,  S.  D.,  T.  &  T.  Co.,  197  U.  S.  178  ...    124,  331 

Day,  In  re,   181  111.  73    61 

Debs,  In  re,   158  U.  S.  564    362 

Degge  V.  Hitchcock,  229  U.  S.  162   374 

Delaware,  L.  &  W.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341  122,  205 

Delaware  &  H.  C.  Co.  v.  Commonwealth,  1  Mona.   ( Pa. )   36   24 

De  Lima  v.  Bidwell,  182  U.  S.  1    54 

Delmar  Jockey  Club  v.  Missouri,  210  U.  S.  324  145 

Delmas  v.  Insurance  Co.,  14  Wall.  661  330,  334 

Denny  v.  Bennett,  128  U.  S.  489   331 

Dent  v.  West  Virginia,   129  U.  S.  114    131,  160,  178 

Denver  v.  New  Y.  T.  Co.,  229  U.  S.   123    42,  258,  332 

Desert  W.,  O.  &  I.  Co.  v.  California,  202  Fed.  498   355 

Des  Moines  v.  Des  Moines  C.  Ry.  Co.,  214  U.  S.  179   331 

Des  Moines  W.  Co.  v.  Des  Moines,  192  Fed.  193   286,  311,  317 

Detroit  v.  Detroit  C.  S.  Ry.  Co.,  184  U.  S.  368   331,  335,  336,  341 

Detroit  v.  Parker,    181   U.   S.   399    116 

Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Inter.  Com.  Comn.,  74  Fed.  803 34,     35 

Detroit  U.  Ry.  v.  Detroit,  229  U.  S.  39   337 

Diamond  M.  Co.  v.  Ontonagon,   188   U.  S.  82    24,     27 

Diaz   V.   United   States,   223   U.   S.   442    359 

Dickinson    T.    R.,    23    Pa.    Super.    34    239 

Dill  V.  Ebey,  229  U.  S.   199    371 

Dilworth  v.  Schuylkill  1.  L.  Co.,  219  Pa.  527    56 

District  of  Columbia  v.  Brooke,  214  U.  S.  138   180,  190,  213 

Dobbins  v.  Los  Angeles,  195  U.  S.  223   124,  139,  176,  178,  179,  203 

Dodge  V.  Woolscy,  18  How.  331   330 

Dominus  Rex  v.  Kilderby,   1   Saund.  312    244 

Donnelly  v.  United  States,  228  U.  S.  243    95 

Dorman   v.    State,   34   Ala.   216    53,  158,   189,  191,  197 

Dorr  v.  United  States,  195  U.  S.  138   78,  187,  198 


TABLE  OF  CASES.  389 

References  are  to  Pages. 

Douglas  P.  J.  C.  V.  Grainger,   146   Fed.  414    123 

Douglass  V.   County  of  Pike,   101   U.  S.   677    333 

Dow  V.  Beidelman,   125  U.  S.  680    127,  231,  262,  274,  276,  277,  299 

Dower  v.  Richards,  151  U.  S.  658    364 

Dowling  V.  Lancashire  I.  Co.,  92  Wis.  63    63 

Downes  v.   Bidwell,   182   U.   S.   244    198,  374 

Dreier  v.  United  States,  221  U.  S.  394   366 

Dreyer  v.  Illinois,   187  U.  S.   71    80,  207 

Dugan  V.  State,  125  Ind.  130  10 

Dunbar  v.  Boston  &  P.  R.  Co.,   181  Mass.  383    216 

E. 

Eakin  v.  Raub,   12  S.  &  R.    (Pa.)    330    65,  188 

Eckerson  v.  Des  Moines,  137  Iowa,  452    52 

Edwards  v.  Elliott,  21  Wall.  532   363 

Edwards  v.  Kearzey,  96  U.  S.  595    330,  334 

Eldridge  v.  Trezevant,  160  U.  S.  452    177 

Elliott  V.  City  of  Detroit,  121  Mich.  611    50 

Elliott  V.  Toeppner,   187   U.   S.  327    364 

Ellis  V.  United  States,  206  U.  S.  246    180 

El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez,  215  U.  S.  87   2,  54,  376 

Elwell  V.  Comstock,  99  Minn.  261    82 

Elwood  G.  Co.  V.  St.  Joseph  &  G.  I.  Ry.  Co.,  202  Fed.  845   32 

Empire  S.  C.  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  210  U.  S.  1 364 

Employers'  Liability  Cases,   see  Howard  v.  Illinois  C.  R.  Co. 
Employers'  Liability  Cases,  Second,  see  Mondou  v.  New  Y.,  N.  H.  & 
H.  R.  Co. 

Emporia  v.  Emporia  T.  Co.,  88  Kan.  443   39 

Engel  V.  O'Malley,  219  U.  S.  128    212,  263 

Ensign  v,  Pennsylvania,  227  U.  S.  592    115,  132 

Erie  v.  Erie  G.  &  M.  Co.,  78  Kan.  348   305 

Erie  R.  Co.  v.  Purdy,  185  U.  S.   148    16 

Erie  R.  Co.  v.  Wenaque  L.  Co.,  75  N.  J.  L.  878    110 

Escanaba  &  L.  M.  T.  Co.  v.  Chicago,  107  U.  S.  678   218 

Estate  of  Stilwell,  In  the  Matter  of,  139  N.  Y.  337   61 

Ettor  V.  Tacoma,   228   U.   S.   148    229,  332,  356 

Eubank  v.  Richmond,  226  U.  S.  137   139,  140,  208,  215,  343 

Evers  v.  Hudson,  36  Mont.   135    51 

Ewing  V.  Leavenworth,  226  U.  S.  464   10 

Ex  parte  Beck,    162    Cal.    701     89 

Ex  parte  Boyce,  27   Nev.  299    244 

Ex  parte  Boyd,  105  U.  S.  647   93 

Ex  parte  Cox,    63    Cal.   21    63,     83 

Ex  parte  Farnsworth,   61   Tex.   Cr.   342    50 

Ex  parte  Gerino,    143    Cal.   412    82 


390  TABLE  OF  CASES. 

References  abe  to  Pages. 

Ex  parte  Griffiths,   118  Ind.  83    61 

Ex  parte  tiarding,    219    U.    S.    303     150,  187 

Ex  parte  Holman,  79  S.  C.  9   187 

Ex  parte  Koehler,  30  Fed.  867    26 

Ex  parte  Koehler,   23    Fed.    529    321,  324,  325,  345 

Ex  parte  Lange,    18    Wall.    163     115,  359,  360 

Ex  parte  McManus,   151   Cal.   331    82 

Ex  parte  Martin,    13   Ark.    198    235 

Ex  parte  Nebraska,  209  U.  S.  436    356 

Ex  parte  Siebold,    100  U.   S.   371    191 

Ex  parte  Terry,    128    U.    S.   289    362 

Ex  parte  Virginia,    100    U.    S.    339     155,  252,  255 

Ex  parte  Wall,  107  U.  S.  265  138 

Ex  parte  Wall,  48   Cal.  279    89 

Ex  parte  Whitley,    144    Cal.    167     82 

Ex  parte  Wood,   155   Fed.   190    264 

Ex  parte  Young,   209   U.   S.    123    57,  128,  226,  227,  232 

256,  264,  266,  314,  354,  358 

Express  Cases,   117   U.   S.   1    105 

F. 

Fairbank  v.  United  States,  181  U.  S.  283    374 

Fair  H.  &  W.  R.  Co.  v.  New  Haven,  203  U.  S.  379   345 

Fairview  v.  Giffee,  73   Ohio  St.   183    50 

Fall  V.  Eastin,  215  U.  S.  1   206 

Fallbrook   Irr.   Dist.   v.   Bradley,    164   U.   S.    112 

123,   132,  133,  135,  140,  145,   173,  179,  191,  236,  238,  239,  242 

Fargo  V.  Hart,   193  U.  S.  490    123,  205,  290,  292 

Farmers'  L.  &  T.  Co.  v.  Stone,  20  Fed.  270 16,  73 

Farnsworth,  Ex  parte,  61  Tex.  Cr.  342    50 

Fayerweather  v.   Ritch,   195   U.   S.   276    122,  139,  180 

Fell  V.  State,  42  Md.  71    89 

Felts  V.  Murphy,  201  U.  S.  123   137,  173 

Ferguson  v.  Landram,  5  Bush   (Ky.)    230   39,  40 

Ferguson  v.  Reardon,  124  N.  Y.  App.  Div.  818    366 

Fidelity  &  C.  Co.  v.  Southern  Ry.  N.  Co.,  214  U.  S.  498    145 

Field  V.  Barber  A.  P.  Co.,  194  U.  S.  618 179 

Field  T.  Clark,  143  U.  S.  649   51,  77,  87 

Fink  V.  O'Neil,   106  U.  S.  272    93 

Finley  v.  California,  222  U.  S.  28   261 

Fisher  t.  Baker,  203  U.  S.  174   371 

Fisk  V.  Jefferson  Police  Jury,  116  U.  S.  131    330,  335 

Fite  V,  State,   114  Tenn.   646    63,  95 

Fitzgerald  v.  Fitzgerald  &  Mallory  C.  Co.,  41  Neb.  374   40 

Fitzmaurice  v.  New  Y.,  N.  H.  &  H.  R.  Co.,  192  Mass.  159  328 


TABLE  OF  CASES.  391 

ReFEBENCES    ABE   TO    PAGES. 

Flemister  v.  United  States,  207  U.  S.  372    359 

Fletcher  v.  Peck,   6   Cranch,   87    201,  204,  236,  330,  334,  335 

Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107  .  .  .37,  54,  60,  144,  190,  205,  209,  211 

Florida  E.  C.  Ry.  Co.  v.  United  States,  200  Fed.  797   112,  297 

Fong  Yue  Ting' v.  United  States,   149  U.  S.  698    178,  362 

Ford  V.   Surget,   97   U.   S.   594    331 

Forsyth  v.  Hammond,  166  U.  S.  506   132,  133 

Foster  v.  Morse,   132  Mass.  354    40 

Fournier  v.  Comrs.  of  Aroostook  Co.,  109  Me.  48  50,     87 

Fouts  V,  Hood  River,  46  Ore.  492    51,     89 

Fox  V.  McDonald,  101  Ala.  51    52 

Franklin   v.   South   Carolina,   218   U.   S.    161    200,  255 

Franklin  v.  United  States,  216  U.  S.  559    92 

Frasier  v.  Charleston  &  W.  C.  Ry.  Co.,  81  S.  C.  162  10 

Freeland  v.  Williams,   131   U.  S.  405    140 

Freeport  W.  Co.  v.  Freeport,  180  U.  S.  587   337,  341,  342 

French  v.  Barber  A.  P.  Co.,  181  U.  S.  324  ....    116,  117,  118,  124,  160,  179 

French  v.  Taylor,  199  U.  S.  274  133 

Frisbie  v.  United  States,  157  U.  S.  160   196 

G. 

Galveston,  H.  &  S.  A.  Ry.  Co.  y.  Wallace,  223  U.  S.  481   8,     12 

Galveston  &  W.  Ry.  Co,  v.  Galveston,  90  Tex.  398,  91  Tex.  17   39 

Gamble-Robinson  Comn.  Co.  v.  Chicago  &  N.  W.  Ry.  Co.,  168  Fed.  161  .     27 

Gardner  v.  Michigan,   199  U.  S.  325    209,  212,  229,  263 

Gardner  v.  Newburgh,  2  Johns.  Ch.   162    235 

Garfield  v.   Goldsby,  211   U.   S.   249    115,  126,  137 

Garnett,  In  re,  141  U.  S.  1    44 

Gavieres  v.  United  States,  220  U.  S,  338    359 

Gelpcke  v.  Dubuque,  1  Wall.  175   333,  334 

General  Oil   Co.   v.  Grain,   209   U.   S.  211    23,     24 

George  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  214  Mo.  551    325 

Georgia  R.  &  B.  Co.  v.  Smith,  128  U.  S.  174   69,  75,  127,  231,  338 

Georgia  R.  &  B.  Co.  v.  Smith,  70  Ga.  694   65,     68,     69,     71 

Gerino,  Ex  parte,  144  Cal.  167   82 

German  A.  Ins.  Co.  v.  Hale,  219  U.  S.  307   210,  216,  218,  253,  258 

Gibbons  v.  Ogden,  9  Wheat.  1   16,  43,  54,  157 

Gibson  v.  Mississippi,   162   U.   S.  565    133,  255 

Gilbert  E.  Ry.  Co.,  In  re,  70  N,  Y.  361    84 

Gilhooly  v.  City  of  Elizabeth,  66  N.  J.  L.  484    63,     77 

Giozza  v.  Tieman,   148   U.  S,  657    173,  178,  201 

Glickstein  v.  United  States,  222  U.  S.  139    366 

Gloucester  W.  S.  Co.  v.  Gloucester,  179  Mass.  365 286 

Goodrich  v.  Ferris,  214  U.  S.  71   137 

Gould  V.  Youngworth,  205  U.  S.  538   362 


392  TABLE  OF  CASES. 

References  are  to  Pages. 

Governor  of  Georgia  v.  Madrazo,   1   Pet.   110    355 

Grafton   v.   United  States,   206   U.   S.   333    359,  360 

Graham  v.  Roberts,  200  Mass.  152   50 

Graham  v.  West  Virginia,  224  U,  S.  616   132,  360 

Grand  R,  &  I.  Ry.  Co.  v,  Osborn,  193   U.  S.  17    20,     39,     40,       339 

Grand  T.  W.  Ry.  Co.  v.  R.  Comn.  of  Indiana,  221  U.  S.  400 330 

Grand  T.  W.  Ry.  Co.  v.  South  Bend,  277  U.  S.  544  ...   330,  333,  335,  343 
Granger  Cases,  94  U.  S.,  see  Munn  v.  Illinois;  Chicago,  B.  &  Q.  R.  Co. 
V.  Iowa;  Peik  v.  Cliieago  &  N.  W.  Ry.  Co. 

Grant  v.  United  States,  227  U.  S.  74    366,  368 

Green  v.  Biddle,  8  Wheat.   1    334 

Green  B.  &  M.  C.  Co.  v.  Patten  P.  Co.,  172  U.  S,  58,  173  U.  S.  179 

122,  139,  146,  204 

Green  County  v.  Quinlan,  211   U.   S.  582    243,  244 

Greenough  v.  Greenough,  11  Pa.  St.  494   108 

Greenwood  v.  Freight  Co.,   105  U.  S.   13    346 

Gregory  v.   Kansas   City,   244   Mo.   523    95 

Grenada  L.  Co.  v.  Mississippi,  217  U.  S.  433 56,  133,  190,  245,  370,  371 

Gretna  Green,  The,   20   Fed.   901    43 

Griffin  V.  Goldsboro  W.  Co.,  122  N.  C.  206  276,  277 

Griffith  V.   Connecticut,  218  U.   S.  563    209,  259 

Griffiths,  Ex  parte,    118   Ind.   83    61 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,    165   U.   S.    150    141,  260 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas,   102   Tex.   338    326 

Gulf  &  S.  I.  R.  Co.  V.  Adams,    90    Miss.    559    336 

Gulf  &  S.  I.  R.  Co.  V.  Hewes,  183  U.  S.  66   340 

Guild  V.  City  of  Chicago,  82  111.  472   89 

Gulf  C.  Co.  V.  Harris,  Cortner  &  Co.,   158  Ala.  343    59,  109 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,  165  U.  S.  150   120,  254,  255 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley,  158  U.  S.  98 H,  13,  14,     40 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  R.  Comn.,  102  Tex.  338 Ill,  316,  324 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas,    204    U.    S.   403 

24,     25,     28,     29,     31,  364 

Gundling  v.  Chicago,   177  U.  S.   183    209,  212,  215 

Gunn   V.   Barry,    15   Wall.   610    330 

H. 

Hagar  v.  Reclamation  Dist.,  Ill  U.  S.  701    133,  140 

Hagood  V.  Southern,   117   U.  S.  52    357 

Hairston  v.  Danville  &  W.  Ry.  Co.,  208  U.  S.  598   134,  239,  240 

Hale  V.  Henkel,  201   U.  S.  43    365,  366,  367,  368 

Hall  V.  De  Cuir,  95  U.  S.  485    13,     27 

Hall  V.  Wisconsin,    103    U.    S.    5    334 

Hallinger   v.   Davis,    146   U.   S.   314    132,  174 

Halter  v.  Nebraska,  205  U.  S.  34   53,     80,  200,  217,  218 


TABLE  OF  CASES.  393 

References  aee  to  Pages, 

Hamilton,  The,  207  U.  S.  398    5,  206 

Hamilton  G.  L.  &  C.  Co.  v.  Hamilton  City,  146  U.  S.  258   331 

Hammond  P.  Co.  v.  Arkansas,  212  U.  S.  322 

42,  121,  132,  135,  137,  180,  205,  210 

Hampton  v,  St,  Louis,  I,  M.  &  S,  Ry.  Co.,  227  U.  S.  456 15,  370,  371 

Hand  v.  Stapleton,  135  Ala.  156  84,     87 

Hanford  v.  Davies,  163  U,  S,  273   331 

Hanley  v,  Kansas  C.  S.  Ry.  Co.,  187  U.  S.  617   2,     10,     34 

Hannibal  B.  Co.  v.  United  States,  221  U,  S.  194  76 

Hannis  D.  Co.  v.  Baltimore,  216  U.  S.  285    204,  205 

Hanover  Nat.  Bk.  v.  Moyses,  186  U.  S.  181    209,  330 

Hans  V.  Louisiana,  134  U.  S.  1   353,  354,  355,  356,  357 

Harder's  F.  S.  &  V.  Co.  v.  Chicago,  235  111.  58    53 

Harding,   Ex  parte,  219   U.   S.   363    150,  187 

Hardwick  F.  E.  Co,  v,  Chicago,  R.  I.  &  P.  Ry.  Co.,  110  Minn.  25 10 

Harkrader   v.   Wadley,    172   U.    S.    148    357 

Harmon  v.  Chicago,  147  U.  S.  396    33,     43 

Harmon  v.  State,  66  Ohio  St,  249    82 

Harriman  v.  Interstate  Com.  Comn.,  211  U.  S.  407    372 

Hatch  V.  Reardon,  204  U.  S,  152   177,  205,  257,  328 

Havemeyer  v.  Iowa  County,   3  Wall.  294    333 

Hawaii  v.  Mankichi,   190  U.  S.  197    198 

Hazel  Kirke,   The,  25   Fed.  601    43 

Heath  &  Milligan  Mfg.  Co.  v.  Worst,  207  U.  S.  338   ...    141,  191,  245,  259 

Hedderich  v.   State,   101   Ind.   564    197 

Heike  v.  United  States,   227   U.  S.   131    366 

Heiserman  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  63  Iowa,  732 26 

Henderson  v.  Central  P.  Ry.  Co.,  21  Fed.  358   238 

Henderson  B.  Co.  v.  Henderson  City,   173  U.  S.  592    179,  189,  229 

Henderson  B.  Co.  v.  Kentucky,  166  U.  S,  150   17 

Hennington  v,  Georgia,   163  U.  S.  299    190 

Hepburn  v,   Griswold,   8   Wall,   603    197,  201 

Herndon  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  218  U.  S.  135 41,  266,  358 

Herndon  v.  Imperial  F.  I.  Co.,  Ill  N.  C.  384   61 

Hertz  V,  Woodman,  218  U,  S,  205    187 

Heyman  v.  Southern  Ry,  Co.,  202  U.  S.  270  25 

Hibben  v.  Smith,  191  U.  S.  310   116,  177,  178 

Higginson  v,  Chicago,  B,  &  Q.  R.  Co.,  lOO  Fed.  235   326 

Hildreth   v.   Crawford,   65   Iowa,    339    61,     82 

Hills  &  Co.  V.  Hoover,  220  U.  S.  329   94 

Hingham  &  Q.  B.  &  T.  Corp.  v.  County  of  Norfolk,  88  Mass.  353 40 

Hodges  v.  United  States,  203  U.  S.   1    54,  125,  173 

Hodgson  v.  Vermont,  168  U.  S.  262    178,  210 

Hoke  V.  United  States,  227  U.  S.  308    54,  213 

Holden  v.  Hardy,    169   U.   S.  366 

140,   184,   196,  201,  209,  215,  229,  239,  254,  255,  259,  260 


394  TABLE  OF  CASES. 

References  are  to  Pages. 

Hollingsworth  v.  Virginia,  3  Dall.  378   355 

Holman,  Ex  parte,  79  S.  C.  9   187 

Home  I.  Co.  v.  Swigert,   104  111.  653    86 

Home  T.  Co.  v.  Carthage,   235    Mo.    644    286,  303,  315 

Home  T.  &  T.  Co.  v.  Los  Angeles,   227   U.   S.  278    331 

Home  T.  &  T.  Co.  v.  Los  Angeles,   211    U.   S.   265    ...      59,  122,  123,  125 

126,  128,  129,  131,  136,  137,  232,  261,  262,  263,  337,  341,  343 

Honolulu  R.  T.  &  L.  Co.  v.  Hawaii,  211  U.  S.  282   59,  110,  129 

Hooe  V.  United  States,  218  U.  S.  322  123,  125,  127 

Hooker  v.  Knapp,   225   U.   S.   302    110 

Hooker  v.  Los  Angeles,  188  U.  S.  314   133,  191 

Hoopes  V.  Bradshaw,  231  Pa.  485    61 

Hopkins  v.  Clemson  Agricultural  College,  221  U.  S.  636   ...   353,  356,  357 

Hotema  v.  United  States,  186  U.  S.  413    359 

House  V.  Mayes,  219  U.  S.  270   ...      53,     54,  209,  210,  212,  215,  218,  245 

Houston  V.  Williams,  13  Cal.  24    61 

Houston  D.  N,  Co.  v.  Insurance  Co.  of  N.  A.,  89  Tex.  1   38 

Houston  &  T.  C.  R.  Co.  v.  Storey,  149  Fed.  499    19,  263,  339 

Houston  &  T.  C.  Ry.  Co.  v.  Texas,   170  U.   S.  243    330,  334 

Hovey  v.  Comrs.  of  Wyandotte   Co.,   56   Kan,   577    63 

Hovey  v.  Elliott,  167  U.  S.  409   137,  139 

Howard  v.  Illinois  C.  R.  Co.,  207  U.  S.  463 16,  191,  372,  375,  376 

Howard  v.  Kentucky,  200  U.  S.  164   115,  145,  199,  204,  207 

Hubert  v.  New  Orleans,  215  U.  S.   170    333 

Hudson  V.  Parker,  156  U.  S.  277    61 

Hudson  C.   W.   Co.  v.  McCarter,   209   U.   S.   349    140,  216,  344 

Hunt  V.  Tausick,  64  Wash.  69    50 

Hunter  v.  Charleston  &  W.  C.  Ry.  Co.,  81  S.  C.  169  10 

Hunter  v.  City  of  Tracy,   104  Minn.  378    81 

Hunter  v.  Pittsburgh,  207  U.   S.   161    115,  132,  190 

Hunter  v.  Wood,  209   U.   S.  205    264 

Hurst  V.  Warner,    102  Mich.  238    83 

Hurtado  v.  California,  110  U.  S.  516    52,   116,  117,  130,  151,  152, 

159,  160,  170,  174,  177,  178,  184,  193,  196,  198,  199,  201,  241 


Illinois  C.  R.  Co.  v.  Edwards,  203   U.   S.  531    16 

Illinois  C.  R.  Co.  v.  Henderson  E.  Co.,  226  U.  S.  441   8,     13 

Illinois  C.  R.  Co.  v.  Illinois,    108    U.    S.    541    338 

Illinois  C.  R.  Co.  v.  Inter.  Com.  Comn.,  206  U.  S.  441  113,  303,  305 

Illinois  C.  R.  Co.  v.  McKendree,  203  U.  S.  514   16 

Illinois  C.  R.  Co.  v.  Stone,  20  Fed.  468   16,     73,     74 

Incorporated  Village  of  Fairview  v.  Giffee,  73  Ohio  St.  183    50 

Incorporation  of  North  Milwaukee,  In  re,  93  Wis.  616   63 

Indianapolis  v.  Navin,  151  Ind.  139  341 


TABLE  OF  CASES.  395 

KeFEBENCES    ABE    TO    PaGES. 

Ingram  v.  State,  39  Ala.  247    96 

Inhabitants  of  Township  of  Bernards  v.  Allen,  61  N.  J.  L.  228 63 

In  re  Advances  in  Rates— Eastern  Case,  20  I.  C.  C.  243 276,  299 

In  re  Advances  in  Rates— Western  Case,  20  1.  C.  C.  307 277,  320 

In  re  Arkansas  Railroad  Rates,  168  Fed.  720     281,  293,  304 

In  re  Arkansas  Railroad  Rates,  163  Fed.  141     316 

In  re  Arkansas  Rate  Cases,   187   Fed.  290 

278,  289,  293,  302,  303,  304,  317 

In  re  Ayers,  123  U.  S.  443  357 

In  re  Beer,  17  N.  D.  184  365 

In  re  Chapman,  166  U.  S.  661  49 

In  re  Coborn,  131  Pac.  352  108 

In  re  Converse,  137  U.  S.  624  145,  177,  178 

In  re  County  Comrs.,  22  Okla.  435  96 

In  re  Day,  181  111.  73  61 

In  re  Debs,    158    U.    S.    564    362 

In  re  Garnett,   141  U.  S.  1    44 

In  re  Gilbert  E.  Ry.  Co.,  70  N.  Y.  361   84 

In  re  Incorporation  of  North  Milwaiikee,  93  Wis.  616   63 

In  re  Jacobs,  98   N.  Y.  98 247,  248 

In  re  Janitor  of  Supreme  Court,  35  Wis.  410    49,     61 

In  re  Kelly,  46  Fed.  653    207 

In  re  Kemmler,  136  U.  S.  436   116,  130,  160,  173,  174,   177,  184,  199 

In  re  Kollock,  165  U.  S.  526   95 

In  re  Manning,  139  U.  S.  504   145 

In  re  Municipal  Suffrage  to  Women,   160  Mass.  586    50 

In  re  New  Y.  E.  R.  Co.,  70  N.  Y.  327    84,     88,     89 

In  re  Opinion  of  Justices,  74  N.  H.  606   95 

In  re  Pfahler,    150   Cal.   71    50 

In  re  Rahrer,   140  U.  S.  545    24,     51,     79,     80 

In  re  Rebecchi,   100  N.  Y.  Supp.  335    279 

In  re  Sadler,  Okla.,  130  Pac.  906   61 

In  re  Senate  Bill,   12  Colo.   188    96 

In  re  Shibuya  Jugiro,   140  U.  S.  291    255 

In  re  Thompson,  36  Wash.  377    82 

International  P.  S.  Co.  v.  Bruce,  194  U.  S.  601   356,  357 

International  T.   Co.  v.   Pigg,   217  U.  S.  91    375 

Interstate  Com.  Comn.  v.  Alabama  M.  Ry.  Co.,   168  U.   S.   144 

59,  62,  76,  111 

Interstate  Com.  Comn.  v.  Baird,  194  U.  S.  25   9,  365 

Interstate  Com.  Comn.  v.  Baltimore  &  O.  R.  Co.,  145  U.  S.  263 328 

Interstate  Com.  Comn.  v.  Bellaire,  Z.  &  C.  Ry.  Co.,  77  Fed.  942 26 

Interstate  Com.  Comn.  v.  Brimson,  154  U.  S.  447    107,  137 

Interstate  Com,  Comn.  v.  Chicago,  B.  &  Q.  R.  Co.,  218  U.  S.  113  .       8,     72 

Interstate  Com.  Comn.  v.  Chicago,  B.  &  Q.  R.  Co.,  94  Fed.  272 108 

Interstate  Com.  Comn.  v.  Chicago  G.  W.  Ry.  Co.,  209  U.  S.  108  .      73,  104 


396  TABLE  OF  CASES. 

ReFEKENCES    ABE   TO   PAGES. 

Interstate  Com.  Comn.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  218  U.  S.  88 

8,     59,     72,  111,  228,  271,  328,  371 
Interstate  Com.  Comn.  v.  Cincinnati,    N.    O.    &    T.    P.    Ry.    Co.,    167 

U.    S.   479    59,     62,     72,     76,  107,  128 

Interstate  Com.  Comn.  v.  Delaware,  L.  &  W.  R.  Co.,  220  U.  S.  235   .  .    113 
Interstate  Com.  Comn.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  167  U.  S.  633 

35,     37 

Interstate  Com.  Comn.  v.  Diffenbaugh,  222  U.  S.  42   32 

Interstate  Com.  Comn.  v.  Goodrich  T.  Co.,  224  U.  S.  194  ...  16,  45,  77,     95 
Interstate  Com.  Comn.  v.  Illinois  C.  R.  Co.,  215  U.  S.  452 

72,  112,  191,  204 
Interstate  Com.  Comn.  v,  Louisville  &  N.  R.  Co.,  227   U.  S.  88 

111,  112,  138,  210,  225 
Interstate  Com.  Comn.  v.  Louisville  &  N.  R.  Co.,  118  Fed.  613  .  .   310,  321 

Interstate  Com.  Comn.  v.  iNorthern  P.  Ry.  Co.,  216  U.  S.  538    104 

Interstate  Com.  Comn.  v.  Reichmann,    145   Fed.   235    9 

Interstate  Com.  Comn.  v.  Union   P.   R.   Co.,   222   U.   S.   541 

8,  104,  111,  112,  113,  191,  210,  230,  325 

Interstate  Com.  Comn.  v.  U.  S.  ex  rel  H.  S.  Co.,  224  U.  S.  474 2 

Interstate  C.  S.  Ry.  Co.  v.  Commonwealth,  207  U.  S.   79 

39,  100,  173,  216,  261,  328 

In  the  Matter  of  George  Harris,   221   U.  S.  274    366 

In  the  Matter  of  Spencer,  228  U.  S.  652    371 

In  the  Matter  of  the  Estate  of  Stilwell,  139  N.  Y.  337  61 

In  the  Matter  of  Through  Routes  and  Through  Rates,  12  I.  C.  C.  163  .      31 

Iowa  C.  Ry,  Co.  v.  Iowa,  160  U.  S.  389    133 

Iowa  L.  I.  Co.  V.  East  M.  L.  I.  Co.,  64  N.  J.  L.  340 84 

Iron  C.  Co.  v,  Negaunee  I.  Co.,  197  U.  S.  463   123 

Iron  M.  R.  Co.  v.  Memphis,  96   Fed.    113    124 

Iron  M.  R.  Co.  v.  Memphis,  89    Tex.    1    38 

Isenhour  v.  State,  157  Ind.  517   83 

Ivy  V.  Western  U.  T.  Co.,  165  Fed.  371    57 

J. 

Jack  V.  Kansas,  199  U.  S.  372  115,  134 

Jackson  v.  Rogers,  2  Show.  327  56 

Jacob  v.  Roberts,  223  U.  S.  261  137 

Jacobs,  In  re,  98  N.  Y.  98  247,  248 

Jacobson  v.  Massachusetts,  197  U.  S.  1] 

41,  54,  178,  196,  202,  203,  209,  210,  212,  214,  215,  216,  245 

James  v.  Bowman,    190    U.    S.    127     125,  372,  376 

James  v.  Walker,  141  Ky.  88    87 

Jamieson  v.  Indiana  N.  G.  Co.,   128  Ind.   555    345 

Janitor  of  Supreme  Court,  In  re,  35  Wis.  410   49,     61 

Janvrin  v.  Revere  W.  Co.,  55  N.  E.  381   108 


TABLE  OF  CASES.  397 

References  abe  to  Pages. 

Janvrin,   Petitioner,    174   Mass.    514    108 

Jeflferson  Branch  Bank  v.  Skelly,  1  Black,  436   333 

Jermyn  v.  Fowler,  186  Pa.  595  95 

Jetson  V.  University  of  the  South,  208  U.  S.  489    339 

Johannessen  v.  United  States,  225  U.  S.  227   107 

Johnson  v.  Southern  P.  Co.,   196  U.  S.   1    24 

Johnson  v.  United  States,  228  U.  S.  457    140,  178,  366 

Johnston  C.  Assn.  v.  Parker,  45  N.  Y.  App.  Div.  55  63 

Jones  V.  Belzoni  Drainage  Dist.,  102  Miss.,  59  So.  921   84 

Jordan  v.  Massachusetts,  225   U.  S.   167    138 

Juilliard  v.  Greenman,  110  U.  S.  421    54 

J.  W.  Perry  Co.  v.   Norfolk,  220  U.   S.  472    333,  337 

K. 

Kadderly  v.  City  of  Portland,  44  Ore.  118   91 

Kansas  v.  Colorado,  206  U.  S.  46    2,     16,     20,     54,     80,  105,  353 

Kansas,  C.  S.  Ry.  Co.  v.  Albers    Comn.    Co.,    233    U.    S.    573 

8,     14,     30,  364 

Kansas  C.  S.  Ry.  Co.  v.  Brooks,  84  Ark.  233    11 

Kansas  C.  S.  Ry.  Co.  v.  Carl,  227  U.  S.  639    14 

Kansas  C.  S.  Ry.  Co.  v.  United   States,   204   Fed.   641    112 

Kaukauna  W.  P.  Co.  v.  G.  B.  &  M.  C.  Co.,  142  U.  S.  254 139,  233,  234 

Kawananakoa  v.  Polyblank,  205  U.  S.  349   353,  356 

Keefe  v.  Lexington  &  B.  S.  Ry.  Co.,  185  Mass.  183   39 

Keeney  v.  New  York,  222  U.  S.  525   205,  257,  260 

Keerl  v.  Montana,  213  U.  S.   135    360 

Kehler  &  Bro.  v.  Jack  M.  Co.,  55  Ga.  639  63 

Keith  V.  Clark,  97  U.  S.  454    330 

Keller  v.  United  States,  213  U.  S.   138    54,  218 

Kelley  v.  Rhoads,  188  U.  S.  1   23,     24 

Kelly,  In   re,  46  Fed.  653    207 

Kemmler,  In  re,  136  U.  S.  436   ....    116,  130,  160,  173,  174,  177,  184,  199 

Kennard  v.  Louisiana,  92  U.  S.  480    130 

Kennebec  W.  Dist.  v.  Waterville,  97  Me.  185    289 

Kennedy  v.  Mayor,  21  R.  I.  461    81 

Kentucky  R.  Tax  Cases,  115  U.  S.  321    230 

Kentucky  U.  Co.  v.  Kentucky,  219  U.  S.  140 

108,   178,  211,  217,  258,  375 

Kentucky  &  I.  B.  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  567   27 

Keokuk  &  W.  R.  Co.  v.  Missouri,  152  U.  S.  301   340 

Kepner  v.  United  States,  195  U.  S.  100   360 

Kerfoot  v.  Farmers'  &  M.  Bk.,  218  U.  S.  281    364 

Kidd  V.  Pearson,  128  U.  S.  1    13,     34 

Kidd,  D.  &  P.  Co.  V.  Musselman  G.  Co.,  217  U.  S.  461    210 

Kier  v.  Lowrey,  199  U.  S.  233   333 


398  TABLE  OF  CASES. 

Refebences  are  to  Pages. 

Kilbourn  v.  Thompson,  103  U.  S.  168   49 

King  V.  Concordia  F.  I.  Co.,  140  Mich.  258   63 

King  V.  Hatfield,    130    Fed.    564    139,  239 

King  V.  Mullins,   171  U.  S.  404    168 

King  V.  Tennessee,  87  Tenn.  304    63 

Kingman  et  al..  Petitioners,  153  Mass.  566   96 

Kirby  v.  United  States,  174  U.  S.  47    368 

Knight  V.  Lane,  228  U.  S.  6    127 

Knights  T.  I.  Co.  v.  Jarman,  187  U.  S.  197   372 

Knott  V.  Chicago,  B.  &  Q.  R.  Co.,  230  U.  S.  474 

188,  293,  301,  304,  312,  372,  376,  377 

Knowlton  v.  Moore,   178   U.  S.  41    198,  349 

Kmoxville  v.  Knoxville  W.  Co.,  212  U.  S.  1   58,  128,  188,  192,  228, 

230,  265,  273,  277,  279,  281,  286,  303,  307,  314,  376 

Knoxville  W.  Co.  v.  Knoxville,   189   U.  S.  434    337,  344,  346 

Koehler,  Ex  parte,  30  Fed.  867     26 

Koehler,  Ex  parte,  23  Fed.  529     321,  324,  325,  345 

Kollock,  In  re,  165  U.  S.  526   95 

Koppala  V.  State,  15  Wyo.  398,  414,  418   83 

Kuhn  V.  Fairmount  C.  Co.,  215  U.  S.  349 333 


Lake  County  v.  Graham,  130  U.  S.  674  340 

Lake  S.  &  M.  S.  Ry.  Co.  v.  Ohio,  173  U.  S.  285   218 

Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith,  173  U.  S.  684    ...    120,  122,  127,  143, 
177,  208,  215,  226,  228,  230,  233,  256,  327,  328,  346,  347 

Lambert  v.  Barrett,  157  U.  S.  697    145 

Lange,  Ex  parte,   18  Wall.  163    115,  359,  360 

Lanning  v.  Osborne,  76  Fed.  319    109 

Latimer  v.  United  States,  223  U.  S.  501    118 

Laurel  F.  &  S.  H.  R.  Co.  v.  West  V.  T.  Co.,  25  W.  Va.  324 336 

Laurel  Hill  Cemetery  v.  San  Francisco,  216  U.  S.  358 173,  188,  257 

Lawton  v.  Steele,  152  U.  S.  133   200,  204,  210,  212,  215,  216,  222 

League  v.  Texas,  184  U.  S.  156   48 

Lee  v.  Bude  &  T.  J.  Ry.  Co.,  L.  R.  6  C.  P.  576 52,  203 

Lee  v.  Marsh,   230  Pa.   351    95 

Leechburg  Borough  v.  Leechburg  W.  W.  Co.,  219  Pa.  263   296 

Leeper  v.  State,    103   Tenn.   500    84 

Leeper  v.  Texas,   139   U.  S.  402    178,  184 

Lee  Wilson  &  Co.  v.  W.  R.  C.  B.  &  M.  Co.,  Ark.,  146  S.  W.  110 50 

Legal  Tender  Cases,  12  Wall.  457    189,  191,  197,  201 

Lehigh  V.  R.  Co.  v.  Pennsylvania,  145  U.  S.  192   43,     44 

Lehigh  V.  R.  Co.  v.  United  States,  204  Fed.  986    326 

Lehigh  W.  Co.  v.  Easton,  121  U.  S.  388 331 

Leisy  v.  Hardin,  135  U.  S.  100  5,     24,  217 


TABLE  OF  CASES.  399 

KeFEBENCES    ABE    TO    PAGES. 

Lemieux  v.  Young,  211   U.  S.  489    209,  210 

Lent  V.  Tillson,   140  U.  S.  316    145,  207 

Leonard  v.  Vicksburg,  S.  &  P.  R.  Co.,  198  U.  S.  416  40 

Lessee  of  Livingston  v.  Moore,  7  Pet.  469    60 

Lew  V.  Bray,  81  Conn.  213    61 

Lewis  B.  P.  O.  C.  Co.  v.  Briggs,  229  U.  S.  82   54 

L'Hote  V.  New  Orleans,  177  U.  S.  587   191 

License  Cases,  5  How.  504    180,  218 

License  Tax  Cases,  5  Wall.  462   196 

Light  V.   United   States,   220   U.   S.   523    78,     95,     97 

Lincoln  County  v.  Luning,  133  U.  S.  529    356 

Lincoln  G.  &  E.  L.  Co.  v.  Lincoln,  223  U.   S.  349    230,  273,  316 

Lincoln  G.  &  E.  L.  Co.  v.  Lincoln,  182    Fed.    926 

277,  283,  307,  316,  320,  325 

Lindsay  &  Phelps  Co.  v.  Mullen,  176  U.  S.  126   33 

Lindsley  v.  Natural  C.  G.  Co.,  220  U.  S.  61   . .    122,  131,  178,  209,  257,  260 

Ling  Su  Fan  v.  United  States,  218  U.  S.  302    190,  209,  210 

Little  Chute  v.  Van  Camp,   136  Wis.  526    63 

Little  R.  &  F.  S.  Ry.  Co.  v.  Hanniford,  49  Ark.  291   13 

Liverpool  &  L.  &  G.  Ins.  Co.  v.  Board  of  Assessors,  221  U.  S.  358 205 

Loan  Assn.  v.  Topeka,  20  Wall.  655    197,  201,  211,  236,  239 

Lochner  v.  New  York,  198  U.  S.  45 

122,  139,  141,  155,  180,  204,  208,  212,  215,  237,  245,  328 

Locke's   Appeal,    72    Pa.    491     51,     89,     90 

Loeb  v.  Columbia  Township  Trustees,   179  U.  S.  472    333 

Londoner  v.  Denver,   210  U.  S,   373    121,  123,  124,  133,  137 

Long  Branch  Comn.  v.  Tintern  M.  W.  Co.,  70  N.  J.  Eq.  71  . .   281,  303,  316 
Long  I.  W.  S.  Co.  V.  Brooklyn,  166  U.  S.  685 

111,  132,  133,  139,  229,  347 

Longyear  v.  Toolan,  209  U.  S.  414   137 

Lord  V.  Steamship  Co.,  102  U.  S.  541    43 

Los  Angeles  v.  Los  Angeles  C.  W.  Co.,  177  U.  S.  558 

331,  335,  336,  341,  372 

Lothrop  V.  Stedman,  42  Conn.   (Supp.)   583   84 

Lottawanna,   The,   21   Wall.   558    44,     54,     57,  168 

Lottery  Case,  see  Champion  v.  Ames. 

Loughbridge  v.  Harris,  42  Ga.  500    88 

Louisa  Simpson,  The,  2  Sawyer,  57    78 

Louisiana  v.  Gaster,  45  La.  Ann.  636    63,  110 

Louisiana  v.  Jumel,   107  U.  S.  711    357 

Louisiana  v.  New  Orleans,  215  U.  S.  170   330,  333,  334 

Louisiana  v.  Pilsbury,   105  U.   S.  278    334,  335 

Louisiana  v.  Police  Jury,    111   U.   S.   716    334,  335 

Louisiana  v.  Steele,   134  U.  S.  230    357 

Louisville  v.  Cumberland  T.  &  T.  Co.,  225  U.   S.  430    315 

Louisville  v.  Cumberland  T.  &  T.  Co.,  224  U.  S.  649    330,  339 


400  TABLE  OF  CASES. 

References  abe  to  Pages. 

Louisville  v.  Cumberland  T.  &  T.  Co.,  155   Fed.  725    124 

Louisville  &  J.  F.  Co.  v.  Kentucky,    188   U.   S.   385    122,  205 

Louisville  &  JSl.  R.  Co.  v.  Barber  A.  P.  Co.,  197  U.  S.  430   258 

Louisville  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648  9 

Louisville  &  N.  R.  Co.  v.  Brown,    123   Fed.   946    317 

Louisville  &  N.  R.  Co.  v.  Central  S.  Y.  Co.,  212  U.  S.  132 

121,  131,  132,  134,  139,  239 

Louisville  &  N.  R.  Co.  v.  Commonwealth,  99  Ky.  132   110 

Louisville  &  N.  R.  Co.  v.  Cook  B.  Co.,  223  U.  S.  70  12 

Louisville  &  N.  R.  Co.  v.  Eubank,   184   U.   S.  27    19 

Louisville  &  M.  R.  Co.  v.  Hughes,   201    Fed.   727    13 

Louisville  &  N.  R,  Co.  v.  Interstate    Com.    Cbmn.,    184    Fed.    118 

19,     65,     68,     72,     96,  101 
Louisville  &  N.  R.  Co.  v.  Kentucky,    183   U.   S.   503 

17,  129,  179,  190,  226,  230,  232,  256,  262,  264,  337,  338,  343 

Louisville  &  N.  R.  Co.  v.  Kentucky,  161  U.  S.  677    17,  218 

Louisville  &  JN.  R.  Co.  v.  Melton,  218  U.  S.  36    258,  260 

Louisville  &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467 8,  14,  30,  54,  190 

Louisville  &  N.  R.  Co.  v.  R.  Comn.  of  Ala.,  196  Fed.  800 

261,  262,  263,  265,  276,  278,  279,  281,  287,  293,  301,  316,  358 

Louisville  &  N.  R.  Co.  v.  Railroad   Comn.,   157   Fed,  944    358 

Louisville  &  N.  R.  Co.  v.  Railroad  Comn.,  19  Fed.  679    37,  39,  110 

Louisville  &  N.  R.  Co.  v.  Shiler,  186  Fed.  176   107,  137 

Louisville  &  N.  R.  Co.  v.  West  C.  N.  S.  Co.,  198  U.  S.  483 27 

Louisville  &  N.  R.  Co.  v.  Woodson,   134   U.   S.   614    115 

Lowe  V.  Kansas,   163  U.  S.  81    131 

Ludwig  V.  Western  U.  T.  Co.,  216  U.  S.  146  .  .      16,     41,  122,  139,  205,  368 
Lum  V.  Mayor,  72  Miss.  950    89 

M. 

McAlister  v.  Henkel,  201  U.  8.  90  367 

McChord  v.  Louisville  &  N.  R,  Co.,  183  U.  S.  483   59,     76 

MeCornick  v.  Western  U.  T.  Co.,  79  Fed.  449    51,     79 

McCray  v.  United  States,  195  U.  S.  27 

144,  145,  158,  180,  190,  199,  201,  213 

McCulloch  v.  Maryland,  4  Wheat.  316   212,  374 

McCulIough  v.  Virginia,    172    U.    S.    102    333,334 

McDcrmott  v.  Wisconsin,  228  U.  S.  115    11,     25,     54,  213 

McDonald  v.  Denton,  Tex.  Civ.  App.,  132  S.  W.  823    51 

McGahey  v.  Virginia,    135    U.   S.   662    334 

McGonnell's  License,  209   Pa.  327    51 

McGovern  v.  City  of  New  York,  229  U.  S.  363   145,  229 

McLean  v.  Arkansas,  211  U.  8.  539   141,  191,  204,  210,  215,  245 

McManus,   Ex  parte,    151    Cal.   331    82 

McMillan  v.  McNeill,  4  Wheat.  209   334 


TABLE  OF  CASES.  401 

ReFEBENCES    ABE   TO    PAGES. 

McNeill  V.  Southern  Ry.  Co.,  202  U.  S.  543   13,     36,  358 

McNulty  V.  Brooklyn  H.  R.  Co.,  66  N.  Y.  Supp.  57   Ill 

McPherson  v.  Blacker,  146  U.  S.  1    52,  173,  201 

McWhorter  v.  Pensacola  &  A.  R.  Co.,  24  Fla.  417 65,     68,  71 

Mackay  v.  Uinta  D.  Co.,  229  U.  S.  199   371 

Mackin  v.  United  States,  117  U.  S.  348    174 

Madisonville  T.  Co.  v.  St.  Bernard  M.  Co.,  196  U.  S.  239 

41,  123,  201,  239 

Magoun  v.  Illinois  T.  &  S.  Bank,  170  U.  S.  283 60,  255,  257,  258,  260 

Maiorano  v.  Baltimore  &  O.  R.  Co.,  213  U.  S.  268   133,  134 

Mammoth  M.  Co.  v.  Grand  C.  M.  Co.,  213  U.  S.  72 364 

Manigault  v.  Springs,  199  U.  S.  473   229,  272,  344,  346 

Marbury  v.  Madison,  1  Cranch,  137 174,  186,  188,  189 

Marchant  v.  Pennsylvania  R.  Co.,  153  U.  S.  380 123,  133,  177 

Marr  v.  Enloe,  I  Yerg.   (Tenn.)   452   64 

Marrow  v.  Brinkley,   129  U.  S.   178    40,  145 

Martin  v.  District  of  Columbia,  205  U.  S.  135   218 

Martin  v.  Hunter's  Lessee,  1  Wheat.  304   215 

Martin  v.  Mott,  12  Wheat.  9   158 

Martin  v.  Oregon  R.  &  N.  Co.,  58  Ore.  198   49 

Martin  v.  Pittsburg  &  L.  E.  R.  Co.,  203  U.  S.  284  13 

Martin  v.  Texas,  200  U.  S.  316   255 

Martin  v.  West,  222  U.  S.  191    13 

Martin  v.  Witherspoon,   135   Mass.    175    96 

Martin  et  al..  Ex  parte,  13  Ark.  198   235 

Marx  V.  Hanthorn,  148  U.  S.  172    133 

Matthews  v.  Board  of  Corp.  Comrs.  of  N.  C,  106  Fed.  7  ...   275,  289,  323 

Matthews  v.  Board  of  Corp.  Comrs.,  97  Fed.  400   339,  345 

Matthews  v.  Murphy,  23  Ky.  L.  Rep.  750 82,  85 

Mattox  V.  United  States,  156  U.  S.  237    368 

Maxwell  v.  Dow,  176  U.  S.  581    116,  118,  173,  241,  364,  374 

May  V.  New  Orleans,  178  U.  S.  496  24 

Maynard  v.  Hill,  125  U.  S.  190    60 

Mayo     V.  Wilson,  1  N,  H.  53   167 

Mayor  v.  Clunet,  23  Md.  449    87 

Mayor  v.  Dechert,  32  Md.  369    , 52 

Mayor  v.  Manhattan  Ry.  Co.,  143  N.  Y.  1    39 

Mayor  v.  Scharf,  54  Md.  499   141 

Mayor  v.  State,  102  Miss.,  59  So.  873    88 

M.  C.  Kiser  Co.  v.  Central  of  Ga.  Ry.  Co.,  158  Fed.  193  108 

Meeker  v.  Lehigh  V.  R.  Co.,  162  Fed.  354   110 

Memphis  v.  Cumberland  T.  &  T.  Co.,  218  U.  S.  624    124 

Memphis  v.  United  States,  97   U.  S.  293    334,  335 

Memphis  St.  Ry.  Co.  v.  Byrne,  119  Tenn.  278   61 

Menacho  v.   Ward,   27   Fed.   529    56,  109 

26 


402  TABLE  OF  CASES. 

References  abe  to  Pages. 

Mercantile  T.  Co.  v.  Texas  &  P.  Ry.  Co.,  51  Fed.  529  75,  136 

Mercantile  T.  &  D.  Co.  v.  Columbus,  203  U.  S.  311   331 

Merchants'  Exchange  v.  Knott,  212  Mo.  616  84,     95 

Merchants'  Mat.  Bank  v.  Sexton,  228  U.  S.  634   39 

Merchants'  &  M.  Bank  v.  Pennsylvania,  167  U.  S.  461   134 

Metropolis  T.  Co.  v.  Chicago,  228  U.  S.  61  ...    145,  190,  210,  260,  261,  263 

Metropolitan  L.  I.  Co.  v.  New  Orleans,  205  U.  S.  395   205 

Metropolitan  S.  Ry.  Co.  v.  New  York,  199  U.  S.  1    337 

see  also  People  v.  New  Y.  S.  B.  of  T.  Comrs.,  199  U.  S.  1. 

Metropolitan  T.  Co.  v.  Houston  &  T.  C.  R.  Co.,  90  Fed.  683 305 

Meyer  v.  Wells,  Fargo  &  Co.,  223  U.  S.  298 205,  376 

Michigan  C.  R.  Co.  v.  Powers,   201   U.   S.  245 

48,  80,  133,  135,  173,  191,  259 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  59   11,     13 

Milwaukee  E.  Ry.  &  L.  Co.  v.  Milwaukee,  87  Fed.  577   316 

Minneapolis  v.  Minneapolis  S.  Ry.  Co.,  215  U.  S.  417 330,  335,  339 

Minneapolis  E.  Ry.  Co.  v.  Minnesota,  134  U.  S.  467   123 

Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn.,  137  Wis.  80   .     67 
Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn.,  136  Wis.  146 

66,  68,  69,  84,  101,  109,   113,  213 

Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  193  U.  S.  53   364 

Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  186  U.  S.  257 

21,  75,  127,  226,  256,  262,  274,  304,  307,  310,  321 
Minnesota  Rate  Cases,  230  U.  S.  352,  see  Simpson  v.  Shepard. 

Minor  v.  Erie  R.  Co.,  171  N.  Y.  566   39 

Minor  v.  Happersett,  21  Wall.  162  174 

Mires  v.  St.  Louis  &  S.  F.  R.  Co.,  134  Mo.  App.  379  10 

Mississippi  R.  Comn.  v.  Gulf  &  S.  I.  R.  Co.,  79  Miss.  750 336 

Mississippi  R.  Comn.  v.  Illinois  C.  R.  Co.,  203  U.  S.  335   .'^58 

Missouri    v.  Lewis,   101   U.  S.  22    130,  169,  182,  263 

Missouri,  K.  &  T.  Ry,  Co.  v.  Inter.  Com.  Comn,,  164  Fed.  645  ...303,  310 

Missouri,  K.  &  T.  Ry,  Co.  v.  Bowles,   1   Ind.   Terr.   250    2 

Missouri,  K.  &  T.  Ry.  Co.  v.  Haber,  169  U.  S.  613   11,     41 

Missouri,  K.  &  T.  Ry.  Co.  v.  Harriman,  227  U.  S.  657   14 

Missouri,  K.  &  T.  Ry.  Co.  v.  Hickman,   183  U.   S.  53    358 

INIissouri,  K.  &  T.  Ry.  Co.  v.  Love,    177    Fed.   493 

285,  286,  289,  290,  293,  294 

Missouri,  K.  &  T.  Ry.  Co.  v.  May,  194  U,  S.  267    158,  259,  261 

Missouri,  K.  &,  T.  Ry,  Co,  v.  New  E,  M.  Co.,  80  Kan.  141    9 

Missouri,  K.  &  T,  Ry,  Co,  v.  Shannon,  100  Tex,  379   287 

Missouri  P,  Ry,  Co,  v.  Castle,  224  U,   S.   541    13 

Missouri  P.  Ry.  Co.  v.  Humes,    115   U.    S.   512 

116,  120,  140,  159,  178,  204,  210,  249 
Missouri  P.  Ry.  Co,  v.  Kansas,  216  U.  S.  262  ...  16,  132,  145,  209,  210 
Missouri  P,  Ry,  Co,  v,  Larabee  F,  M,  Co,,  211  U,  S,  612  .  .  .  5,  13,  36 
Missouri  P,  Ry,  Co,  v.  Nebraska,  217  U,  S.  196 122,  139,  229,  239 


TABLE  OF  CASES.  403 

RefEBENCES    ABE    TO    PAGES. 

Missouri  P.  Ry.  Co.  v.  Nebraska,  164  U.  S.  403    123,  239 

Missouri  P.  Ry.  Co.  v.  Smith,  60  Ark.  221    277,  303,  304,  321,  323 

Missouri  P.  Ry.  Co.  v.  Tucker,   230   U.   S.   340 

57,  122,  128,  208,  227,  232,  264 

Missouri  P.  Ry.  Co.  v.  United  States,  189  U.  S.  274    109 

Missouri  Rate  Cases,  230  U.  S.  474,  see  Knott  v.  Chicago,  B.  &  Q.  R.  Co. 

Mitchel    V.  Reynolds,  1  P.  Williams,  181    244 

Mitchell  V.  State,  134  Ala.  392    63 

Mitchell  C.  &  C.  Co.  v.  Pennsylvania  R.  Co.,  230  U.  S.  247  12 

Mobile    V.  Watson,   116  U.  S.  289    334,  335 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Mississippi,    210    U.    S.    187 

13,  40,  48,  134,  332 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  219  U.  S.  35    61,  209,  211 

Mobile    &  O.  R.  Co.  v.  Tennessee,  153  U.  S.  486  333,  334 

Moffitt  V.  Kelly,  218  U.  S.  400  134 

Mondou  V.  New  Y.,  N.  H.  &  H.  R.  Co.,  223  U.  S.  1  .  .9,  16,  45,  56,  217,  245 

Monongahela  B.  Co.  v.  United  States,  216  U.  S.  177    77,  194,  196 

Monongahela  N.  Co.  v.  United   States,    148   U.   S.   312 

33,  58,  115,  235,  236,  240,  286,  346 

Montana    Co.  v.  St.  Louis  M.  &  M.  Co.,  152  U.  S.  160 131,  167 

Montana,  W.  &  S.  R.  Co.  v.  Morley,   198  Fed.  991 

109,  256,  279,  285,  287,  289,  318,  358 

Montello,  The,  20  Wall.  430,  11  Wall.  411    42 

Montezuma  C.  Co.  v.  Smithville  C.  Co.,  218  U.  S.  371   108,  109 

Montgomery  v.  Portland,   190  U.  S.  89    43 

Moore  v.  Missouri,  159  U.  S.  673   133 

Morgan  v.  Louisiana,  93  U.  S.  217   340 

Morgan's  L.  &  T.  R.  Co.  v.  Railroad  Comn.  of  La.,   127  La.  636 

20,  308,  316,  326 

Morgan's  S.  Co.  v.  Louisiana,  118  U.  S.  455   218 

Morley  v.  Lake  S.  &  M.  S.  Ry.  Co.,  146  U.  S.  162   123 

Mormon  Church  v.  United  States,  136  U.  S.  1   54,  198 

Morrill  v.  Jones,  106  U.  S.  466   62 

Morrisdale  C.  Co.  v.  Pennsylvania  R.  Co.,  230  U.  S.  304 8,  12,  109 

Morrow  v.  Wipf,  22  S.  D.  146  71 

Morton  v.  Pusey,  237  111.  26 61,  95 

Motes  V.  United  States,  178  U.  S.  458    368 

Mt.  Hope  Cemetery  v.  Boston,  158  Mass.  509   237 

Mt.  Washington  Road  Co.,  Petition  of,  35  N.  H.  134   238 

Moyer  v.  Peabody,  212  U.  S.  78    137,  142,  145 

Muhlenberg  Co.  v.  Morehead,  20  Ky.  L.  Rep.  376    52 

Muhlker  v.  New  Y.  &  H.  R.  Co.,  197  U.  S.  544   229,  333 

MuUan  v.  United  States,  212  U.  S.  516    40 

Muller  V.  Oregon,  208  U.  S.  412   134,  245 

Mumma  v.  Potomac  Co.,   8   Pet.   281    346 

Muncie  N.  G.  Co.  v.  Muncie,  160  Ind.  97   39 


404  TABLE  OF  CASES. 

ReFEBENCES    ABE   TO    PAGES. 

Municipal  Suffrage  to  Women,  In  re,  160  Mass.  586 50 

Munn  V.  Illinois,  94  U.  S.  113 

32,  33,  52,  56,  127,  129,  145,  226,  231,  262,  270,  348 

Murray  v.  Charleston,  96  U.  S.  432   335 

Murray  v.  Pocatello,  226  U.   S.  318    341 

Murray  v.  Wilson  D.  Co.,  213  U.  S.  151   36,  353,  357 

Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.,  18  How.  272 130,  138,  159,  236 

Muskrat  v.  United  States,  219  U.  S.  346 106,  109,  189,  370,  371 

Mutual   L.   Co.   V.  Martell,  222   U.   S.   225 

209,  210,  213,  218,  245,  259,  260 

N. 

Nash  V.  United  States,  229  U.  S.  373   110 

Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Alabama,  128  U.  S.  96  362 

National  Bank  v.  County  of  Yankton,  101  U.  S.  129   54 

National  C.  J.  O.  U.  A.  M.  v.  State  Council,  203  U.  S.  151   37,  121 

National  C.  O.  Co.  v.  Texas,  197  U.  S.  115  133 

National  Ex.  Bank  v.  Wiley,  195  U.  S.  257   122,  204 

National  Home  v.  Parrish,  229   U.  S.  494    356 

National  M.  B.  &  L.  Assn.  v.  Brahan,  193  U.  S.  635 39,  41,  331,  333 

National  W.  Co.  v.  Kansas  City,  62  Fed.  853   286 

Neal  V.  Delaware,  103  U.  S.  370  123,  155 

Nebraska,  Ex  parte,  209   U.  S.  436    356 

Nebraska  T.  Co.  v.  State,  55  Neb.  627   110,  111 

Nelson  v.  United  States,  201  U.  S.  92 367 

New  Jersey  v.  Wilson,  7  Cranch,  164 335 

New  J.  F.  E.  V.  Central  R.  Co.,  2  I.  C.  C.  84 26 

New  Mexico  v.  Denver  &  R.  G.  R.  Co.,  203  U.  S.  38 218 

New  O.    G.  Co.  V.  Louisiana  L.  Co.,   115  U.  S.  650    218,  330,  334 

New  O.  G.  L.  Co.  v.  Drainage  Comn.,  197  U.  S.  453    229 

New  O.  W.  Co.  V.  Louisiana,  185  U.  S.  336 331,  346 

New  O.  &  N.  W.  R.  Co.  v.  Vidalia,  117  La.  560  214 

Newport  &  C.  B.  Co.  v.  United  States,  105  U.  S.  470 346 

New  York  v.  Hesterberg,  211  U.  S.  31    209,  210,  215,  218 

New  York  v.  Knight,    192  U.   S.  21    34,     35,     44 

New  York  v.  Miln,  11  Pet.  102   215 

New  York  v.  Squires,  145  U.  S.  175    264 

New  York  ex  rel.  Annan  v.  Walsh,  143  U.  S.  517  32 

New  York  ex  rel.  Hatch  v.  Reardon,  204  U.  S.  152 177,  205,  257,  328 

New  Y.  C.  &  H.  R.  R.  Co.  v.  Board  of  Chosen  Freeholders,  227  U.  S. 

248    12,  44,  187 

New  Y.  C.  &  H.  R.  R.  Co.  v.  Board  of  Chosen  Freeholders,  74  N.  J. 

L.  367    11 

New  Y.  C.  &  H.  R.  R.  Co.  v.  Miller,  202  U.  S.  584   132,  205 

New  Y.  C.  &  H.  R.  R.  Co.  v.  United  States,  212  U.  S.  481    9 


TABLE  OF  CASES.  405 

ReFEBENCES    ABE    TO    PAGES. 

Mew  Y.  C.  &  H.  R.  R.  Co.  v.  United  States   (No.  2),  212  U.  S.  500 

9,     30 

New  Y.  E.  R.  Co.,  In  re,  70  N.  Y.  327   84,  88,     89 

New  Y.,  L.  E,  &  W.  R.  Co.  v.  Pennsylvania,  158  U.  S.  431       17 

New  Y.,  L.  E.  &  VV.  R.  Co.  v.  Pennsylvania,  153  U.  S.  436      205 

New  Y.,  N.  H.  &  H.  R.  Co.  v.  New  York,  165  U.  S.  628   262 

New  Y.  &  N.  E.  R.  Co.  v.  Bristol,  151  U.  S.  556 •  190,  196,  201 

Nielsen  v.  Oregon,  212  U.  S.  315   206 

Noble  State  Bank  v.  Haskell,    219   U.    S.    104 

56,  140,  190,  209,  212,  216,  218,  239,  245,  246,  257 

Noble  State  Bank  v.  Haskell,   219   U.   S.   575    270 

Noel  v.  People,  187  HI.  587   . .' 63,     85 

Norfolk  &  S.  T.  Co.  v.  Virginia,  225  U.  S.  264   230,  256,  314 

Norfolk  &  W.  R.  Co.  v.  Pendleton,   156  U.  S.  667    339 

Norfolk  &  W.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114 16,     27 

North  A.  C.  S.  Co.  v.  Chicago,  211  U.  S.  306  124,  137 

North  Carolina  v.  Temple,   134  U.  S.   1    355,  356,  357 

North  Dakota  v.  Hanson,  215  U.  S.  515    218 

Northern  P.  Ry.  Co.  v.  Duluth,  208  U.  S.  583    331,  333 

Northern  P.  Ry.  Co.  v.  Keyes,  91   Fed.  47    H,  20,  303,  304,  305 

Northern  P.  Ry.  Co.  v.  Lee,   199   Fed.  621    296,  324,  326 

Northern  P.  Ry,  Co.  v.  Minnesota,  208   U.   S.  583    343 

Northern  P.  Ry.  Co.  v.  North  Dakota,  216  U.  S.  579 295,  325,  376 

Northern  P.  Ry.  Co.  v.  State,   208  U.  S.  583    217,  341 

Northern  P.  Ry.  Co.  v.  Washington,  222  U.   S.  370    13,     36 

Northern  S.  Co.  v.  United  States,  193  U.  S.  197  8,  11,  37,     40 

Northwestern  N.  L.  I.  Co.  v.  Riggs,  203  U.  S.  243 53,  120,  218,  245 

Norton  v.  Shelby  County,  118  U.  S.  425    192 

Norwood  V.  Baker,  172  U.  S.  269   124,  229,  241 

O. 

O'Brien  v.  Wheelock,  184  U.  S.  450  40 

Oceanic  N.  Co.  v.  Stranahan,  214  U.   S.   320    158,  190 

Ochoa  v.  Hernandez  y  Morales,  230  U.  S.  139    115,  127,  137 

Offield  V.  New  Y.,  N.  H.  &  H.  R.  Co.,  203  U.  S.  372   239,  347 

Ogden  V.  Saunders,  12  Wheat.  213   189,  334 

Ohio  V.  Dollison,  194  U.  S.  445   110,   115 

Ohio  Oil  Co.  V.  Indiana,  177  U.  S.  190  191,  229 

Oklahoma  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  220  U.  S.  277    54 

Old  C.  T.  Co.  V.  Omaha,   230  U.   S.    100    134 

Old  D.  S.  Co.  V.  Gilmore,  207  U.  S.  398    5 

Old  D.  S.  Co.  V.  Virginia,  198  U.  S.  299    34 

Old  W.  M.  L.  Assn.  v.  McDonough,  204  U.  S.  8   122,  137,  206 

Olmsted  v.  Olmsted,  216  U.  S.  386   206 

Olsen  v.  Smith,  195  U.  S.  332   5,  133 


406  TABLE  OF  CASES. 

References  abe  to  Pages. 

Omaha  v.  Omaha  W.  Co.,  218  U.  S.  180  285 

Omaha  W.  Co.  v.  Omaha,  147  Fed.  1    336,  345 

Omaha  &  C.  B,  S.  Ry.  Co.  v.  Interstate  Com.  Comn.,  230  U.  S.  324 374 

O'Neil  V.  American  F.  I.  Co.,  166  Fa.  72  63 

O'Neil  V.  Vermont,    144    U.    S.    323    231,  241,  265,  368 

Opinion  of  the  Justices,  74  N.  H.  606  95 

Opinion  of  the  Justices,  138  Mass.  601    50 

Oregon  v.  Hitchcock,  202  U.  S.  60   358 

Oregon  R.  &  N.  Co.  v.  Campbell,  173  Fed.  958   50,  66 

Oregon  R.  &  N.  Co.  v.  Fairchild,   224   U.   S.   510    123,  139,  212 

Orient  Ins.  Co.  v.  Board  of  Assessors,  221  U.  S.  358  205 

Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557  140,  259 

Orr  V.  Oilman,  183  U,  S.  278   134,  173 

Orrick  v.  City  of  Ft.  Worth,  52  Tex.  Civ.  App.  308  89 

Osborn     v.  United  States,  9  Wheat.  738    357 

Osborne  v.  San  Diego  L.  &  T.  Co.,  178  U.  S.  22  110,  344 

Oshkosh  W.  Co.  v.  Oshkosh,  187  U.  S.  437  331 

Otis  V.  Parker,  187  U.  S.  606   210 

Otis  Co.  V.  Ludlow  M.  Co.,  201  U.  S.  140   122,   139,  173,  239 

Ouachita  P.  Co.  v.  Aiken,  121  U.  S.  444  33 

Owensboro  v.  Cumberland  T.  &  T.  Co.,  230  U.   S.   58 

330,  335,  339,  343,  346 

Owensboro  v.  Cumberland  T.  &  T.  Co.,  174  Fed.    739     316 

Owensboro  v.  Owensboro  W.  Co.,  191  U.  S.  358   128,  336,  337,  338 

Owensboro  W.  Co.  v.  Owensboro,  200  U.  S.  38  125,  132,  214 

Owensboro  &  N.  R.  Co.,  v.  Todd,  91  Ky.  175    87 

Oyster  Police  Steamers,  31  Fed.  763  42 

Ozan  L.  Co.  v.  Union  C.  N.  Bk.,  207  U.  S.  251   258 

Ozark-Bell  T.  Co.  v.  City  of  Springfield,  140  Fed.  666 .124,  316 

P. 

Pacific  C.  Ry.  Co.  v.  United  States,  173  Fed.  448  27 

Pacific  C.  S.  Co,  V.  Board  of  R.  Comrs.,  18  Fed.  10  10 

Pacific  G.  I.  Co.  V.  Ellert,  64  Fed.  421   124 

Pacific  R.  Co.  V.  Leavenworth,  1  Dill.  393   39 

Pacific  R.  Co.  V.  Maguire,  20  Wall.  36   330 

Packet  Co.  v.  Catlettsburg,  105  U.  S.  559   33,  108 

Packet  Co.  v.  Keokuk,  95  U.  S.  80   375 

Paddell  v.  New  York,  211  U.  S.  446   173,  216,  257 

Palmer  v.  Texas,  212  U.  S.  118   133 

Pannell  v.  Louisville  T.  W.  Co.,  113  Ky.  630 303,  304 

Parham  v.  The  Justices,  9  Ga.  341   235 

Parker  v.  Metropolitan  R.  Co.,  109  Mass.  506   345 

Parkersburg  v.  Brown,  106  U.  S.  487   239 

Parsons  v.  Bedford,  3  Pet,  433   363 


TABLE  OF  CASES.  407 

ReFEBENCES    ABE    TO    PAGES. 

Passenger  Cases,  7  How.  283   5,  10,     43 

Patterson  v.  Bark  Eudora,  190  U.  S.  169   115 

Patterson  v.  Colorado,  205  U.  S.  454 132,  133,  145,  177,  191,  241 

Patton  V.  Brady,  184  U.  S.  608  191,  209 

Paul  V.  Gloucester  County,  50  N.  J.  L.  585  50,  51,  214 

Paulsen  v.  Portland,  149  U.  S.  30  131 

Payne  &  Butler  v.  Providence  G.  Co.,  31  E.  I.  295  97 

Pearsall  v.  Great  N.  Ry.  Co.,  161  U.  S.  646 337,  338,  343 

Pearson  v.  Yewdall,  95  U.  S.  294 363 

Peck  V.  Weddell,  17  Ohio  St.  271    87 

Pedersen  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146  45,  364 

Peik  V.  Chicago  &  N.  W.  Ry.  Co.,  94  U.  S.  164  75,  226 

Pennington  v.  Woolfolk,  79  Ky.  13   52 

Pennoyer  v.  McConnaughy,  140  U.  S.  1   357,  358 

Pennoyer  v.  Neff,  95  U.  S.  714 137,  206 

Pennsylvania  v.  Wheeling  &  B.  B.  Co.,  18  How.  421   349,  352 

Pennsylvania  R.  Co.  v.  International  C.  M.  Co.,  230  U.  S.  184 12,  374 

Pennsylvania  R.  Co.  v.  Knight,  192  U.  S.  21   34,  35,     44 

Pennsylvania  R.  Co.  v.  Miller,  132  U.  S.  75  338 

Pennsylvania  R.  Co.  v.  Philadelphia  County,  220  Pa.  100 

135,  278,  305,  311,  312,  317,  327,  346 

Pensacola  &  A.  R.  Co.  v.  State,  25  Fla.  310 109,  316,  323 

People  v.  Ahearn,  193  N.  Y.  441    61 

People  v.  Board  of  Election  Comrs.,  221  111.  9  63,     71 

People  V.  Budd,  117  N.  Y.  1   32 

People  V.  City  of  Butte,  4  Mont.  174   89,     90 

People  V.  Cook,  147  Mich.  127  48 

People  V.  Daniels,  6  Utah,  288   214 

People  V.  Delaware  &  H.  C.  Co.,  32  N.  Y.  App.  Div.  120 85 

People  V.  Dunn,  80  Cal.  211    95,     96 

People  V.  Fire  Assn.  of  Phila.,  92  N.  Y.  311  86,     89 

People  V.  Grand  T.  W.  Ry.  Co.,  232  111.  292   97 

People  V.  Harper,  91  111.  357  51,  65,  70,     84 

People  V.  Hayne,  83  Cal.  Ill  61 

People  V.  Healy,  231  111.  629  62 

People  V.  Hoffman,  116  III.  587 89 

People  V.  Hurlburt,  24  Mich.  44  49 

People  V.  Knight,  67  N.  Y.  App.  Div.  398,  171  N.  Y.  354 34 

People  v.  McBride,  234  111.  146    88 

People  v.  Miller,  202  U.  S.  584 132,  205 

People  V.  New  Y.  S.  B.  of  T.  Comrs.,  199  U.  S.  1    263,   287,  337 

People  V.  New  Y.  S.  B.  of  T,  Comrs.,  199  U.  S.  48    113,  179 

People  V.  Piatt,  17  Johns.  195   236 

People  V.  Provines,  34  Cal.  520 51 

People  V.  Public  Service  Comn.,  153  N.  Y.  App,  Div.  129 311,  324,  345 

People  V.  Reardon,  124  N.  Y.  App.  Div.  818   366 


408 


TABLE  OF  CASES. 


ReTEBENCES    ABE   TO    PAGES. 


People  V.  Reid,  151  N.  Y.  App.  Div.  324 82 

People  V.  Reynolds,  5  Gil.    (111.)    1    90 

People  V.  Suburban  R.  Co.,  178  111.  594   39 

People  V.  Tompkins,  186  N.  Y.  413   187 

People  V.  Van  de  Carr,  199  U.  S.  552   124,  177,  178,  209,  210 

People  ex  rel.  Central  P.,  N.  &  E.  R.  Co.  v.  Willcox,  194  N.  Y.  383  .  .59,  111 

People's  G.  L,  &  C.  Co.  v.  Chicago,  194  U.  S.  1    128,  340 

People's  G.  L.  &  C.  Co.  v.  Hale,  94  111.  App.  406    110 

Peoria  G.  &  E.  Co.  v.  Peoria,  200  U.  S.  48  230 

Perry  Co,  v.  Norfolk,  220  U.  S.  472   333,  337 

Peters  v.  Broward,  222  U.  S.  483    133 

Peters  v.  Gilchrist,  32  Sup.  Ct.   122    133 

Petition  of  Mt.  Washington  Road  Co.,  35  N.  H.  134 236 

Pfahler,  In  re,  150  Cal.  71   50 

Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603 30,  329,  345 

Philadelphia  Company  v.  Stimson,  223  U.  S.  605 358 

Phoenix  I.  Co.  v.  Perkins,  19  S.  D.  59 63 

Phoenix  I.  Co.  v.  Welch,  29  Kan.  672   86 

Picton  V.  Cass  County,  13  N.  D.  242   89,  90,     96 

Pierce  v.  Doolittle,  130  Iowa,  333   51,     83 

Pilkey  v.  Gleason,  1  Iowa,  522   63 

Pingree  v.  Michigan  C.  R.  Co.,  118  Mich.  314   336 

Pinney  v.  Nelson,  183  U.  S.  144   331 

Pioneer  T.  &  T.  Co.  v.  Westenhaver,  29  Okla.  429 

275,  278,  279,  283,  285,  286,  291,  311,  312  317 

Pittman  v.  Byars,  51  Tex.  Civ.  App.  83 117,   118 

Pittsburgh,  Appeal  of  City  of,  115  Pa.  4 39 

Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Backus,  154  U.  S.  421   179 

Planters'  I.  Co.  v.  Tennessee,  161  U.  S.  193 332,  340 

Plessy  V.  Ferguson,  163  U.  S.  537   115,  217,  252 

Plinkiewisch  v.  Portland  Ry.,  L.  &  P.  Co.,  58  Ore.  499 50 

Poindexter  v.  Greenhow,  114  U.  S.  270 334,  358,  375 

Polk  V.  Mutual  R.  F.  L.  Assn.,  207  U.  S.  310   180,  345,  346 

Pollock  V.  Farmers'  L.  4;  T.  Co.,  158  U.  S.  601   375 

Portland  Ry.,  L.  &  P.  Co.  v.  Portland,  201  Fed.   119 

264,  331,  341,  343,  345 

V.  Portland,  200  Fed.  890   124,  345 

V.  R.  Comn.  of  Oregon,  229  U.  S.  397 

132,  271,  364,  372 

Portland  &  O.  C.  R.  Co.  v.  Grand  T.  Ry.  Co.,  46  Me.  69   66 

Porto  Rico  V.  Rosaly,  227  U.  S.  270 353 

Potter  V.  Calumet  E.  S,  Ry.  Co.,  158  Fed.  521   39 

Pound  V.  Turck,  95  U.  S.  459   5 

Powell  V.  Pennsylvania,  127  U.  S.  678   190,  247 

Powers  V.  United  States,  223  U.  S.  303   366 

Prentis  v.  Atlantic  C.  L.  Co.,  211  U.  S.  210  .  .48,  59,  105,  106,  122,  123,  129 


Portland  Ry,,  L.  &  P.  Co. 
Portland  Ry.,  L.  &  P.  Co. 


TABLE  OF  CASES.  409 

ReFEBENCES    ABE    TO    PAGES. 

Presser  v.  Illinois,  116  U.  S.  252   376 

Preston  v.  Chicago,  226  U.  S.  447    134 

Prigg  V.  Pennsylvania,  16  Pet.  539 374 

Proctor  &  Gamble  Co.  v.  United  States,  225  U.  S.  282 109,  111,  112 

Proprietors  of  Mt.  Hope  Cemetery  v.  Boston,  158  Mass.  509 237 

Prout  V.  Starr,  188  U.  S.  537  117,  123,  139,  358 

Providence  Bank  v.  Billings,  4  Pet.  514  173,  337 

Puget  S.  E.  Ry.  v.  Railroad  Comn.,  65  Wash.  75 

307,  310,  311,  312,  316,  325,  328 

Pullman  Co.  v.  Kansas,  216  U.  S.  56 16,  39,  41,  42,  121,  122,  139,  205 

Pullman's  P.  C.  Co.  v.  Pennsylvania,  141  U.  S.  18 27 

Pumpelly  v.  Green  B.  &  M.  C.  Co.,  13  Wall.  166 235,  236 

Purdy  V.  Erie  R.  Co.,  162  N.  Y.  42 39 

Purity  E.  &  T.  Co.  v.  Lynch,  226  U.  S.  192   30,  190 

Q. 

Quong  Wing  v.  Kirkendall,  223  U.  S.  59  178,  209,  210,  259 

R. 

Rahrer,  In  re,  140  U.  S.  545   24,  51,  79,     80 

Railroad  Co.  v.  Fuller,  17  Wall.  560   13,  218 

Railroad  Co.  v.  Jackson,  7  Wall.  262   205 

Railroad  Co.  v.  McClure,   10  Wall.  511    330 

Railroad  Co.  v.  Maryland,  21  Wall.  456   11,     27 

Railroad  Co.  v.  Richmond,  96  U.  S.  521 214,  263,  270 

Railroad  Companies  v.  Gaines,  97  U.  S.  697   340 

Railroad  Commission  Cases,  116  U.  S., 

see  Stone  v.  Farmers'  L.  &  T.  Co.;  Stone  v.  Illinois  C.  R.  Co.;  Stone 
V.  Yazoo  &  M.  V.  R.  Co. 

Railroad  Comn.  v.  Houston  &  T.  C.  R.  Co.,  90  Tex.  340 Ill 

Railroad  Comn.  v.  Weld  &  Neville,  96  Tex.  394   Ill 

Railroad  Comn.  of  La.  v.  Cumberland  T.  &  T.  Co.,  212  U.  S.  414 

123,  139,  190,  226,  230,  256,  274,  306,  309,  317 

Railroad  Comn.  of  La.  v.  Texas  &  P.  Ry.  Co.,  229  U.  S.  336 26 

Railroad  Comn.  of  Ohio  v.  Worthington,  225  U.  S.  101   11,     25 

Ralls  County  Court  v.  United  States,  105  U.  S.  733 334,  335 

Randall  v.  Kreiger,  23  Wall.  137  48 

Rankin  v.  Emigh,  218  U.  S.  27   364 

Rankin  County  v.  Davis,  102  Miss.,  50  So.  811   88,     89 

RatcliflF  V.  Wichita  U.  S.  Co.,  74  Kan.  1   53 

Rawlins  v.  Georgia,  201  U.  S.  638   131,  133,  207 

Raymond  v.  Chicago  U.  T.  Co.,  207  U.  S.  20  . .  . .  122,  123,  124,  139,  177,  254 


410  TABLE  OF  CASES. 

ReFEEENCES    ABE   TO    PAGES. 

Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362  57,  75,  76,  109, 

123,  127,  128,  136,  232,  256,  261,  274,  276,  287,  300,  301,  303,  306 

309,  310,  314,  338,  349,  358,  376 

Reagan  v.  Mercantile  T.  Co.,  154  U.  S.  413   36,  128,  136,  256 

Rearick  v.  Pennsylvania,  203  U.  S.  507  25 

Rebecchi,  In  re,  100  N.  Y.  Supp.  335   279 

Red  "C"  0.  M.  Co.  v.  Board  of  Agriculture,  222  U.  S.  380 

77,  82,  180,  190,  209 

Reetz  V.  Michigan,  188  U.  S.  505  138 

Rex  V.  Kilderby,  1  Saund.  312   244 

Rhode  Island  v.  Massachusetts,  12  Pet.  657   374 

Riverside  &  A.  Ry.  Co.  v.  Riverside,  118  Fed.  736  124 

Road  Imp.  Dist.  v.  Glover,  89  Ark.  513   105 

Robbins  v.  Shelby  Taxing  Dist.,  120  U.  S.  489 5 

Robertson  v.  Baldwin,  165  U.  S.  275   118,  173 

Robert  W.  Parsons,  The,  191  U.  S.  17 34,  43,     44 

Robinson  v.  Baltimore  &  O.  R.  Co.,  222  U.  S.  506 12 

Robinson  v.  Harmon,  157  Mich.  266,  276 39 

Rochester  Ry.  Co.  v.  Rochester,  205  U.  S.  236   339 

Rockaway,  The,  156  Fed.  692  43 

Rogers  v.  Alabama,  192  U.  S.  226   255 

Rogers  v.  Peck,  199  U.  S.  425 145,  200 

Rogers  P.  W.  Co.  v.  Fergus,  180  U.  S.  624   337,  341,  342 

Roller  V.  Holly,  176  U.  S.  398  137 

Rose  V.  State,  Ala.,  40  So.  951  63 

Rosenbaum  G.  Co.  v.  Chicago,  R.  I.  &  T.  Ry.  Co.,  130  Fed.  46 11,     24 

Rosenthal  v.  New  York,  226  U.  S.  261   258,  259 

Ross  V.  Duval,  13  Pet.  45   93 

Ross  V.  Oregon,  227  U.  S.  150  59,  132 

Ross  V.  Whitman,  6  Cal.  361    50 

Rouse  V.  Thompson,  228  111.  522   81,     82 

Ruggles  V.  Illinois,  108  U.  S.  526 127,  337,  338 

Rusch  V.  John  Duncan  L.  &  M.  Co.,  211  U.  S.  526 133 

Rushville  v.  Rushville  N.  G.  Co.,  164  Ind.  162   336,  338 

Ryan  v.  Outagamie  County,  80  Wis.  336  96 

S. 

St.  Clair  County  v.  Interstate  S.  &  C.  T.  Co.,  192  U.  S.  454 11,     38 

St.  John  V.  New  York,  201  U.  S.  633  260 

St.  Louis  V.  United  Rys.  Co.,  210  U.  S.  266  337 

St.  Louis    C.  C.  Co.  V.  Illinois,  185  U.  S.  203  80 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Davis,  132  Fed.  629   141 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Edwards,  227  U.  S.  265  15 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly,  228  U.  S.  702    11,     41 

St.  Louis,  L  M.  &  S.  Ry.  Co.  v.  Neal,  83  Ark.  591  84,     95 


TABLE  OF  CASES.  411 

ReFEBENCES    ABE    TO    PAGES. 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  210  U.  S.  281 

56,  76,  82,  84,  95,  132,  145,  190 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wynne,  224  U.  S.  354 144,  145 

St.  Louis  M.  B.  T.  Ry.  Co.  v.  United  States,  188  Fed.  191   63 

St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Seale,  229  U.  S.  156 11,     32 

St.  Louis  S.  W.  Ry.  Co.  v.  Arkansas,  217  U.  S.  136   14 

St.  Louis  &  M.  R.  Co.  v.  Kirkwood,  159  Mo.  239   39 

St.  Louis  &  S.  F.  R.  Co.  v.  Hadley,  168  Fed.  317 

10,  16,  19,  135,  293,  316,  364,  377 
St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill,  156  U.  S.  649 

76,  127,  232,  261,  321,  323,  339 

St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill,  54  Ark.   101    37,  321,  323 

St.  Louis  &  S.  F.  Ry,  Co.  v.  State,  87  Ark.  562   10 

St.  Louis  &  S.  F.  Ry.  Co.  v.  Stevenson,  156  U.  S.  667,  54  Ark.  116  . .     36 
St.  Mary's  F.-A.  P.  Co.  v.  West  Virginia,  203  U.  S.  183 

121,  134,  191,  217,  264 

St.  Paul  G.  L.  Co.  V.  St.  Paul,  181  U.  S.  142   331 

Sabre  v.  Rutland  R.  Co.,  Vt.,  85  Atl.  693  50 

Saddler,  In  re,  Okla.,  130  Pac.  906  61 

Salt  R.  V.  C.  Co.  V.  Nelssen,  10  Ariz.  9  56,  109,  324 

San  Antonio  T.  Co.  v.  Altgelt,  200  U.  S.  304  331,  339,  345 

Sand  F.  Corp.  v.  Cowardin,  213  U.  S.  360   118 

San  Diego  L.  &  T.  Co.  v.  Jasper,  189  U.  S.  439 

59,  109,  179,  273,  276,  280,  299 
San  Diego  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739 

39,  57,  128,  136,  189,  228,  230,  233,  273,  276,  277,  281 

San  Diego  L.  &  T.  Co.  v.  National  City,  74  Fed.  79  39 

San  Diego  W.  Co.  v.  San  Diego,  118  Cal.  556  311 

Sands  v.  Manistee  R.  I.  Co.,  123  U.  S.  288   16,     43 

San  Francisco  N.  Bk.  v.  Dodge,  197  U.  S.  70   287 

San  J.  &  K.  R.  C.  &  I.  Co.  v.  Stanislaus  County,  191  Fed.  875 275,  279 

Santa  Fe,  P.  &  P.  Ry.  Co.  v.  Grant  Bros.  C.  Co.  228  U.  S.  177   14 

Satterlee  v.  Matthewson,  2  Pet.  380 47,  48,  196,  201,  236 

Sauer  v.  New  York,  206  U.  S.  536  145,  169,  190,  229 

Savage  v.  Jones,  225  U.  S.  501    36 

Savannah,  T.  &  I.  of  H.  Ry.  v.  Savannah,  198  U.  S,  392 123,  263 

Savings  Banks  v.  Weeks,  103  Md.  601   207 

Sawyer  v.  Dooley,  21  Nev.  390   47 

Sawyer  v.  United  States,  202  U.  S.   150    366 

Saxton  Nat.  Bank  v.  Carswell,  126  Mo.  436   141 

Scammon  v.  Kansas  C,  St.  J.  &  C.  B.  R.  Co.,  41  Mo.  App.  194 11 

Schaake  v.  Dolley,  85  Kan.  598   67,  84,     96 

Schaezlein  v.  Cabaniss,  135  Cal.  466   83 

Schick  V.  United  States,  195  U.  S.  65   40,  118,  168,  362,  372 

Schmidinger  v.  Chicago,  226  U.  S.  578   209,  210,  245,  258 

Scholle  V.  State,  90  Md.  729  82 


412  TABLE  OF  CASES. 

Eefebences  are  to  Pages. 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1    25,  219 

Schulherr  v.  Bordeaux,  64  Miss.  59    89 

Scotland  County  Court  v.  United  States,  140  U.  S.  41  335 

Scott  V.  City  of  Toledo,  36  Fed.  385  139,  230,  235,  237,  238 

Scott  V.  McNeal,  154  U.  S.  34   122,  137,  184,  206,  208 

Scott  V.  Marley,   124  Tenn.   388    95 

Scully  V.  Bird,  209  U.  S.  481    358 

Seaboard  A.  L.  Ry.  v.  Florida,  203  U.  S.  261    21,  127 

Seaboard  A.  L.  Ry.  v.  Seegers,  207  U.  S.  73   134 

Seaboard  A.  L.  Ry.  Co.  v.  R.   Comn.   of  Ala.,   155   Fed.  792 

20,  266,  309,  316,  339,  358 

Searl  v.  School  Dist.,  133  U.  S.  553 236 

Seattle  v.  Kelleher,  195  U.  S.  351   179 

Second  Employers'  Liability  Cases,  223  U.  S.  1, 

see  Mondou  v.  New  Y.,  N.  H.  &  H.  R.  Co. 

Security  M.  L.  Ins.  Co.  v.  Prewitt,  202  U.  S.  246   40,  41,     42 

Seibert  v.  Lewis,  122  U.  S.  284 335 

Selliger  v.  Kentucky,  213  U.  S.  200 122,  139,  205 

Selover,  Bates  &  Co.  v.  Walsh,  226  U.  S.  112 121,  132,  205,  256 

Senate  Bill,  In  re,  12  Colo.  188   96 

Sharpless  v.  Mayor  of  Philadelphia,  21  Pa.  St.  147   202,  211 

Shawnee  S.  &  D.  Co.  v.  Stearns,  220  U.  S.  462   124,  331 

Sheets  v.  Toledo  H.  T.  Co.,  72  Ohio  St.  60 Ill 

Shepard  v.  Northern  P.  Ry.  Co.,  184  Fed.  765  .  .276,  279,  290,  293,  304,  317 

Shephard  v.  City  of  Wheeling,  30  W.  Va.  479  47,     59 

Shevlin-Carpenter  Co.  v.  Minnesota,  218  U.  S.  57   190 

Shibuya  Jugiro,  In  re,  140  U.  S.  291    255 

Shields  v.  Ohio,  95  U.  S.  319   339,  340 

Shively  v.  Bowlby,  152  U.  S.  1   54 

Siebold,  Ex  parte,   100  U.  S.  371    191 

Siler  V.  Louisville  &  N.  R.  Co.,  213  U.  S.  175   62,  376 

Simon  v.  Craft,  182  U.  S.  427  139 

Simons'  Sons  Co.  v.  Maryland  T.  &  T.  Co.,  99  Md.  141 39 

Simpson  v.  Shepard,  230  U.  S.  352  5,  20,  21,  33,  188,  230,  273, 

274,  276,  279,  280,  281,  283,  284,  288,  290,  292,  293,  298,  301,  304, 

312,  314,  317,  321,  324,  375,  376,  377 

Singer  S.  M.  Co.  v.  Benedict,  229  U.  S.  481   363 

Sinking  Fund  Cases,  99  U.  S.  700   189,  372 

Sinnickson  v.  Johnson,  17  N.  J.  L.  129   235 

Slaughter  House  Cases,  16  Wall.  36 

52,  56,  134,  173,  195,  196,  199,  200,  202,  214,  247,  249,  252 

Slinger  v.  Henneman,  38  Wis.  504   50 

Sloan  V.  Pacific  R.,  61  Mo.  24  336 

Slocum  V,  New  Y.  L.  I.  Co.,  228  U.  S.  364  93,  364 

Smiley  v.  Kansas,  196  U.  S.  447  204,  245 

Smith  V.  Indiana,  191  U.  S.  138   371 


TABLE  OF  CASES.  413 
References  abe  to  Pages. 

Smith  V.  Jennings,   206   U.   S.   276    132 

Smith  V.  Reeves,  178  U.  S.  436   355 

Smith  V.  State  Board  of  Med.  Examrs.,  140  Iowa,  66  61 

Smithsonian  Inst.  v.  St.  John,  214  U.  S.  19 134 

Smyth  V.  Ames,  169  U.  S.  466 16,  20,  21,  36,  120,  122,  127,  226, 

230,  232,  241,  256,  274,  275,  277,  298,  299,  300,  310,  314,  321,  322, 

323,  324,  358 
Smyth  V.  Ames,  171  U.  S.  361 

127,  128,  226,  230,  233,  241,  261,  274,  275,  282,  312,  322,  323,  324 

Snell  V.  Chicago,  133  111.  413    339 

Soliah  V.  Cormack,  17  N.  D.  393   84 

Soliah  V.  Heskin,  222  U.  S.  522   81 

Soon  Hing  v.  Crowley,  113  U.  S.  703   180 

Soper  V.  Lawrence  Bros.  Co.,  201  U.  S.  359   132 

South  Carolina  v.  Georgia,  93  U.  S.  4   349,  352 

South  Dakota  v.  North  Carolina,  192  U.  S.  286   354 

South  Carolina  v.  United  States,  199  U.  S.  437   36,  373 

Southern  Ex.  Co.  v.  Goldberg,   101   Va.  619    14 

Southern  Ex.  Co.  v.  Memphis  &  L.  R.  R.  Co.,  8  Fed.  799 109 

Southern  I.  Ry.  Co.  v.  Railroad  Comn.,  172  Ind.  113 60,  258,  263,  316 

Southern  P.  Co.  v.  Bartine,  170  Fed.  725    281 

Southern  P.  Co.  v.  Board  of  R.  Comrs.,  78  Fed.  236 

136,  303,  306,  307,  315,  321 
Southern  P.  Co.  v.  Campbell,  230  U.  S.   537 

113,  132,  264,  296,  324,  338,  375 

Southern  P.  Co.  v.  Colorado  F.  &  I.  Co.,  101  Fed.  779 Ill 

Southern  P.  Co.  v.  Interstate   Com.   Comn.,  219  U.   S.  433 

62,  104,  111,  113,  371 

Southern  P.  Co.  v.  Kentucky,  222  U.  S.  63    205 

Southern  P.  Co.  v.  Portland,  227  U.   S.  559    39,  346 

Southern  P.  T.  Co.  v.  Interstate  Com.  Comn.,  219  U.  S.  498 

9,  25,  26,  32,  33,  371 

Southern  Ry.  Co.  v.  Burlington  L.  Co.,  225  U.  S.  99 15 

Southern  Ry.  Co.  v.  Greene,  216  U.  S.  400 41,  121,  253,  254,  256,  260 

Southern  Ry.  Co.  v.  Hunt,  42  Ind.  App.  90 65,  70,  262,  263,  265 

Southern  Ry.  Co.  v.  King,  217  U.  S.  524    13 

Southern  Ry.  Co.  v.  McNeill,  155  Fed.  756   316 

Southern  Ry.  Co.  v.  Reid,  222  U.  S.  424   13,15,  36 

Southern  Ry.  Co.  v.  Reid  &  Beam,  222  U.  S.  444 14,  15,  36 

Southern  Ry.  Co.  v.  St.  Louis  H.  &  G.  Co.,  214  U.  S.  297   314 

Southern  Ry.  Co.  v.  Tift,  206  U.  S.  428    12,  66,  108 

Southern  Ry.  Co.  v.  United  States,  222  U.  S.  20   27,  45 

South  Pasadena  v.  Los  Angeles  T.  Ry.  Co.,  109  Cal.  315   39 

Southwestern  Oil  Co.  v.  Texas,  217  U.  S.  114 134,  191,  328,  370 

Spencer,  In  the  Matter  of,  228  U.  S.  652   371 

Sperry  &  Hutchinson  Co.  v.  Rhodes,  220  U.  S.  502  178,  258 


414  TABLE  OF  CASES. 

RkFEBENCES    ABE   TO    PAGES. 

Spiegler  v.  City  of  Chicago,  216  111.  114  84 

Spokane  v.  Camp,  50  Wash.  554  87 

Spraigue  v.  Thompson,  118  U.  S.  90 375 

Springer  v.  United  States,  102  U.  S.  586  191 

Springville  v.  Thomas,  166  U.  S.  707  363 

Spring  V.  W.  v.  Bartlett,  16  Fed.  615 338 

Spring  V.  W.  Co.  v.  San  Francisco,  165  Fed.  667 

277,  279,  280,  285,  287,  303,  315 

Spring  V.  W.  v.  San  Francisco,  192  Fed.  137  316 

Spring  V.  W.  v.  San  Francisco,  165  Fed.  657    275 

Spring  V.  W.  v.  San  Francisco,  124  Fed.  574   ....123,  124,  129,  179,  316 

Spring  V.  W.  v.  Schottler,   110  U.  S.  347    231,  338,  345 

Sprintz  v.  Saxton,  125  N.  Y.  App.  Div.  908  61 

Standard  Oil  Co.  v.  Missouri,  224  U.  S.  270  138,  225 

Standard  Oil  Co.  v.  Tennessee,  217  U.  S.  413  133 

Standard  Oil  Co.  v.  United  States,  221  U.  S.  1  110,  118,  188,  195 

Stanislaus  County  v.  San  J.  &  K.  R.  C.  &  I.  Co.,  192  U.  S.  201 

262,  273,  276,  315,  336,  337,  339,  345 

State  V.  ,  1  Hayw.  (N.  C.)  28 167,  182 

State  V.  Adams  Ex.  Co.,  66  Minn.  271   61 

State  V.  Adams  Ex.  Co.,  85  Neb.  25    309 

State  V.  Armstrong,  91  Miss.  513    52 

State  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  176  Mo.  687  37 

State  V.  Atlantic  C.  L.  R.  Co.,  48  Fla.  146    21 

State  V.  Atlantic  C.  L.  R.  Co.,  56  Fla.  617    68 

State  V.  Atlantic  C.  L.  R.  Co.,  64  Fla.,  60  So.  186    189 

State  V.  Barrett,  138  N.  C.  630  61 

State  V.  Barringer,  110  N.  C.  525 96 

State  V.  Bates,  96  Minn.  110  47,  50 

State  V.  Bonneval,   128  La.   902    327 

State  V.  Briggs,  45  Ore.  366    82 

State  V.  Bryan,  50  Fla.  293    84,  95 

State  V.  Budge,  14  N.  D.  532  63 

State  V.  Burdge,  95  Wis.  390   83,  95 

State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  38  Minn.  281   65,  68,  69,  71 

State  V.  Chittenden,  127  Wis.  468   82 

State  V.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  47  Ohio  St.  130  38 

State  V.  City  of  Mankato,  117  Minn.  458  51 

State  V.  Converse,  40  Utah,  119  Pac.  1030  61 

State  V.  Cooley,  65  Minn.  406   89 

State  V.  Corvallis  &  E.  R.  Co.,  59  Ore.  450 67,  95 

State  V.  Crombie,  107  Minn.  16G 82 

State  V.  Donovan,  Wash.,  130  Pac.  356    50 

State  V.  Fairchild,  224  U.  S.  510   123 

State  V.  Felton,  77  Ohio  St.  554  71 

State  V.  Field,  17  Mo.  529   63 


TABLE  OF  CASES.  415 

ReFEBENCES    ABE    TO    PAGES. 

State  V.  Fountain,  6  Pennewill    (Del.)    520   53,     89 

State  V.  Frear,  146  Wis.  291    95 

State  V.  Freemont,  E.  &  M.  V.  R.  Co.,  23  Neb.  117,  22  Neb.  313 66 

State  V.  Gardner,  58  Ohio  St.  599  82 

State  V.  Gaster,  45  La.  An.  636   63,   110 

State  V.  Gaunt,  13  Ore.  115  63 

State  V.  Great  N.  Ry.  Co.,  100  Minn.  445    63,     67 

State  V.  Great  N.  Ry.  Co.,  17  N.  D.  370  327 

State  V.  Great  N.  Ry.  Co.,  68  Wash.  257    96 

State  V.  Great  N.  Ry.  Co.,  43  Wash.  658 325 

State  V.  Hagood,  30  S.  C.  519    97 

State  V.  Heinemann,  80  Wis.   253    82 

State  V.  Holland,  37  Mont.  393 95 

State  V.  Hudson  Co.  Ave.  Comrs.,  37  N.  J.  L.  12  96 

State  V.  Hunter,  38   Kan.   578    89 

State  V.  Johnson,  61  Kan.  803   47,  59,  106,  109 

State  V.  Keener,  78  Kan.  649    52 

State  V.  Kenosha  E.  Ry.  Co.,  145  Wis.  337  67,     84 

State  V.  Kline,  50  Ore.  426   48,  89,     90 

State  V.  Loden,  117  Md.  373   82 

State  V.  Loomis,   115  Mo.  307    255 

State  V.  Louisville  &  N.  R.  Co.,  62  Fla.  315  325 

State  V.  McCarty,  5  Ala.  Ap.  212   83,     95 

State  V.  Mankato,   117  Minn.  458    51 

State  V.  Messenger,  53  Ohio  St.  398    85 

State  V.  Minneapolis  &  St.  L.  R.  Co.,  80  Minn.  191 66,  75,  274,  307 

State  V.  Missouri  P.  Ry.  Co.,  76  Kan.  467 53,  66,  96,  325,  326 

State  V.  Montgomery,  176  Ala.,  59  So.  294  87,     90 

State  V.  Moores,  55  Neb.  480 53 

State  V.  New  Haven  &  N.  Co.,  43  Conn.  351   87 

State  V.  New  Y.  &  N.  E.  R.  Co.,  59  Conn.  63  95 

State  V.  Noble,  118  Ind.  350  61 

State  V.  Omaha  E.  Co.,  75  Neb.  654   32 

State  V.  Omaha  &  C.  B.  Ry.  &  B.  Co.,  113  Iowa,  30 39 

State  V.  O'Neill,  24  Wis.  149    89 

State  V.  Parker,  26  Vt.  357   89 

State  V.  Pierre,  121  La.  465   49,     61 

State  V.  Pond,   93   Mo.   606    89 

State  V.  Potello,  40  Utah,  119  Pac.  1023   61 

State  V.  Preferred  T.  M.  Co.,  184  Mo.  160 96 

State  V.  Rasmussen,  7  Idaho,   1    83 

State  V.  Rogers,  71  Ohio  St.  203   63 

State  V.  Sammons,  62   Fla.   303    88 

State  V.  Sanders    130  La.  272   50 

State  V.  Savage,  65  Neb.  714  290 

State  V.  Seaboard  A.  L.  Ry.,  48  Fla.  129   20,     21 


416  TABLE  OF  CASES. 

References  abe  to  Pages. 

State  V.  Sherow,  87  Kan.  235   95 

State  V.  Snyder,  131  La.   145    83 

State  V.  Southern  Ry.  Co.,  141  N.  C.  846   83 

State  V.  Storey,  51  Wash.  630 84,     87 

State  V.  Struble,  19  S.  D.  646   50,     61 

State  V.  Sutton,  84  N.  J.  L.,  84  Atl.  1057  258,  316,  327 

State  V.  Texas  Sl  N.  O.  R.  Co.,  103  S.  W.  653  110 

State  V.  Thompson,   160  Mo.  333    82 

State  V.  United  States  Ex.  Co.,  81  Minn.  87   21 

State  V.  Ure,  91  Neb.  31    52,     89 

State  V.  Vickens,   186  Mo.   103    83 

State  V.  Wagener,  77  Minn.  483   95 

State  V.  Wolf,  145  N.  C.  440   60 

State  Bank  v.  Knopp,  16  How.  369 333 

State  Comn.  in  Lunacy  v.  Welch,  129  Pac.  974   108 

State  ex  rel.  Ellis  v.  Atlantic  C.  L.  R.  Co.,  51  Fla.  578   62 

State  ex  rel.  Hunt  v.  Tausick,  64  Wash.  69    50,     89 

State  ex  rel.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Railroad  Comn., 

137  Wis.  80    67 

State  ex  rel.  Sheets  v.  Toledo  H.  T.  Co.,  72  Ohio  St.  60 Ill 

State  ex  rel.  Webster  v.  Superior  Court,  67  Wash.  37   65,  69 

State  ex  rel.  Wilkinson  v.  Lane,  Ala.,  62  So.  31   52 

State  Tax  on  Foreign-held  Bonds,  15  Wall.  300  205,  334 

Staude  v.  Election  Comrs.,  61  Cal.  313  52 

Steenerson  v.  Great  N.  Ry.  Co.,  69  Minn.  353 

57,  111,  275,  276,  279,  281,  292,  297,  307,  308,  312,  315,  318,  321 

Stern  v.  Metropolitan  T.  &  T.  Co.,  46  N.  Y.  Supp.  110 55 

Stevens  v.  Griffith,  111  U.  S.  48   331 

Stevens  v.  Truman,  127  Cal.  155    61 

Stewart  v.  Comer,  100  Ga.  754  14 

Stickney  v.  Interstate  Com.  Comn.,  164  Fed.  638  112 

Stickney  v.  Kelaey,  209  U.  S.  419  132 

Stone  V.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307 

13,  16,  73,  74,  127,  231,  232,  299,  337,  338 

Stone  V.  Illinois  C.  R.  Co.,  116  U.  S.  347   16,  73,  74,  128,  338 

Stone  V.  Natchez,  J.  &  C.  R.  Co.,  62  Miss.  646  73,  74 

Stone  V.  Wisconsin,  94  U.  S.  181   345 

Stone  V.  Yazoo  &  M.  V.  R.  Co.,  62  Miss.  607   65,  73 

Storrs  V.  Pensacola  &  A.  R.  Co.,  29  Fla.  617   65 

Stoutenburgh  v.  Hennick,  129  U.  S.  141   2,  50,  51,  79 

Strassheim  v.  Daily,  221  U.  S.  280   206 

Strauder  v.  West  Virginia,  100  U.  S.  303   255 

Strickley  v.  Highland  B.  G.  M.  Co.,  200  U.  S.  527   239 

Strough  V.  New  Y.  C.  &  H.  R.  R.  Co.,   181  N.  Y.  533,  92  N.  Y.  App. 

Div.   584    14 

Sturges  v.  Crowninshield,  4  Wheat.  122   215,  330,  334 


TABLE  OF  CASES.  417 

ReFEBENCES    ABE    TO    PAGES. 

Sullivan  v.  Texas,  207  U.  S.  416   333 

Sumpter  v.  State,  81  Ark.  60 167 

Susquehanna  C.  Co.  v.  South  Amboy,  228  U.  S.  665 23 

Sutherland  v.  Governor,  29  Mich.  320   57,  225 

Sweet  V.  Rechel,  159  U.  S.  380    145,  236 

Swift  &  Co.  V.  United  States,  196  U.  S.  375  24,  34,  35 

Swigart  v.  Baker,  229  U.  S.  187  108 


Talbot  V.  Fidelity  &  C.  Co.,  74  Md.  536   86 

Tallassee  F.  M.  Co.  v.  Commissioners'  Court,  158  Ala.  263 65 

Tarrance  v.  Florida,  188  U.  S.  519   255 

Taylor  v.  United  States,  207  U.  S.  120  360 

Taylor  and  Marshall  v.  Beckham,  178  U.  S.  548 140,  155,  178,  245 

Telegraph  Co.  v.  Texas,  105  U.  S.  460   16 

Terre  Haute  v.  Evansville  &  T.  H.  R.  Co.,  149  Ind.  174  52 

Terrett  v.  Taylor,  9  Cranch.  43   196,  201,  330,  334 

Territory  of  New  Mexico  v.  Denver  &  R.  G.  R.  Co.,  203  U.  S.  38 218 

Terry  v.  Anderson,  95  U.  S.  628   217 

Terry,  Ex  parte,  128  U.  S.  289   362 

Texas  &  N.  O.  R.  Co.  v.  Miller,  221  U.  S.  408   217,  343 

Texas  &  N.  0.  R.  Co.  v.  Sabine  T.  Co.,  227  U.  S.  Ill   2,  11,  26,  29 

Texas  &  P.  Ry.  Co.  v.  Abilene  C.  O.  Co.,  204  U.  S.  426  .  .9,  12,  56,  57,  110 

Texas  &  P.  Ry.  Co.  v.  Cisco  Oil  Mill,  204  U.  S.  449    9,  14 

Texas  &  P.  Ry.  Co.  v.  Interstate  Com.  Comn.,  162  U.  S.  197  ..26,  72,  103 

Texas  &  P.  Ry.  Co.  v.  Mugg  &  Dryden,  202  U.  S.  242   14,  30 

Texas  &  P.  Ry.  Co.  v.  R.  Comn.  of  La.,  192  Fed.  280   277 

Thalheimer  v.  Board  of  Suprs.,  11  Ariz.  430 89 

The  Abby  Dodge,  223  U.  S.  166   2,  372 

The  Case  of  Captain  Streater,  5  How.  St.  Trials,  365   52,  166 

The  Chinese  Exclusion  Case,  130  U.  S.  581   180 

The  City  of  Salem,  38  Fed.  762   43 

The  Daniel  Ball,  10  Wall.  557   27,  28,  43 

The  Gretna  Green,  20  Fed.  901   43 

The  Hamilton,  207  U.  S.  398 5,  206 

The  Hazel  Kirke,  25   Fed.  601    43 

The  Lottawanna,  21   Wall.  558    44,  54,  57,  168 

The  Louisa  Simpson,  2  Sawyer,  57   78 

The  Montello,  20  Wall.  430,  11  Wall.  411    42 

The  Oyster  Police  Steamers,  31  Fed.  763   42 

The  Robert  W.  Parsons,  191  U.  S.  17   34,  43,  44 

The  Rockaway,  156  Fed.  692   43 

Thomas  v.  Iowa,  209  U.  S.  258    371 

Thomas  v.  Texas,  212  U.  S.  278   113,  255,  364 

Thompson  v.  Floyd,  2  Jones'  L.   (N.  C.)   313   61 

27 


418  TABLE  OF  CASES. 

REFEEENCES    ABE    TO    PAGES. 

Thompson  v.  Kentucky,  2C9  U.  S.  340   36,  204 

ITiompson  v.  Kidder,  74  N.  H.  89   117 

Thompson,  In   re,   36   Wash.   377    82 

Thorpe  v.  Rutland  &  B.  R.  Co.,  27  Vt.  140 53 

Through  Routes  and  Through  Rates,  In  the  Matter  of,  12  I.  C.  C.  163  31 

Tift  V.  Southern  Ry.  Co.,  138  Fed.  753   66,  108,  111 

Tift  V.  Southern  Ry.  Co.,  123  Fed.  789    108 

Tilley  v.  Savannah,  F.  &.  W.  R.  Co.,  5  Fed.  641  .  .51,  65,  68,  69,  70,  71  315 

Tindal  v.  Wesley,  167  U.  S.  204 357 

Tinsley  v.  Treat,  205  U.  S.  20 362 

Tonawanda  v.  Lyon,  181  U.  S.  389    116 

Toncray  v.  Budge,  14  Idaho,  621  50 

Trade  Mark  Cases,  100  U.  S.  82   375,  376 

Trammel!  v.  Dinsmore,  10:^  Fed.  794   109 

Transportation  Co.  v.  Chicago,  99  U.  S.  635  270 

Trask  v.  Maguire,  18  Wall.  391    340 

Trinity  County  v.  Mendocino  County,  151  Cal.  279  81 

Trono  v.  United  States,  199  U.  S.  521   360 

Trust  Co.  of  A.  v.  Chicago,  P.  &  St.  L.  Ry.  Co.,  199  Fed.  593 293,  316 

Trustees  v.  Saratoga  G.,  E.  L.  &  P.  Co.,  191  N.  Y.  123 

48,  52,  65,  68,  60,  71,  99 

Trustees  v.  Saratoga  G.,  E.  L.,  H.  &  P.  Co.,  122  N.  Y.  App.  Div.  203  ...  311 

Turner  v.  Fisher,  222  U.  S.  204   115,  127,  137 

Turpin  v.  Lemon,  187  U.  S.  51    130,   133,  196 

Twining  v.  New  Jersey,  211  U.  S.  78 53,  115,  116,  131,  132,  135, 

138,  140,  142,  158,  159,  167,  169,  170,  174,  177,  184,  187,  190,  193, 

196,  199,  213,  241,  247,  361,  365 

Twitchell  v.  Commonwealth,  7  Wall.  321  362 

Tyrone  G.  &  W.  Co.  v.  Burley,  19  Pa.  Super.  348  108 

U. 

Ubarri  v.  Laborde,  214  U.  S.  168  364 

Ughbanks  v.  Armstrong,  208  U.  S.  481   115 

Union  B.  Co.  v.  United  States,  204  U.  S.  364  76 

Union  P.  R.  Co.  v.  Updike  G.  Co.,  222  U.  S.  215   8,     32 

Union  R.  T.  Co.  v.  Kentucky,  199  U.  S.  194 122,  205,  229 

United  States  v.  Ball,  163  U.  S.  662  360 

United  States  v.  Baltimore  &  O.  S.  W.  R.  Co.,  226  U.  S.  14 113,  225 

United  States  v.  Baruch,  223  U.  S.  191   118,  119 

United  States  v.  Beacham,  29  Fed.  284 43 

United  States  v.  Bellingham  B.  B.  Co.,  176  U.  S.  211   43 

United  States  v.  Burlington  &  H.  C.  F.  Co.,  21  Fed.  331   43,     44 

United  States  v.  Burr,  4  Cranch,  469   118 

United  States  v.  California  &  0.  L.  Co.,  148  U.  S.  31  179 


TABLE  OF  CASES.  419 

References  abe  to  Pages. 

United  States  v.  Chandler-Dunbar  W.  P.  Co.,  229  U.  S.  53 

43,  54,  213,  324,  371 

United  States  v.  Chicago,  K.  &  S.  E.  Co.,  81  Fed.  783   26 

United  States  v.  Colorado  &  JST.  W.  E.  Co.,  157   Fed.  342    27 

United  States  v.  Colorado  &  N.  W.  E.  Co.,  157  Fed.  321    26,     27 

United  States  v.  Cruikshank,  92  U.  S.  542   125,  198,  210 

United  States  v.  Delaware,  L.  &  W.  E.  Co.,  152  Fed.  269 10,  304 

United  States  v.  Delaware  &  H.  Co.,  213  U.  S.  366 

60,  145,  180,  190,  370,  372 

United  States,  v.  Des  Moines  N.  &  Ey.  Co.,  142  U.  S.  510 179 

United  States  v.  Duell,   172  U.  S.  576    Ill 

United  States  v.  Eaton,  144  U.  S.  677    62 

United  States  v.  Erie  E.  Co.,  166  Fed.  352    10 

United  States  v.  Evans,  213  U.  S.  297   105,  360,  371 

United  States  v.  Fisher,  222  U.  S.  204   115,  127,  137 

United  States  v.  Geddes,  131  Fed.  452,  180  Fed.  480   26,     27 

United  States  v.  George,  228  U.  S.  14 62 

United  States  v.  Grimaud,  220  U.  S.  506  51,  70,  77,  78,     97 

United  States  v.  Grimaud,  216  U.  S.  614   70,  78,  95,     97 

United  States  v.  Grimaud,  170  Fed.  205    78 

United  States  v.  Hamburg-A.  P.  F,  A.  G.,  200  Fed.  806   2 

United  States  v.  Harris,  106  U.  S.  629   54,  125 

United  States  v.  Heinszen,  206  U.  S.  370   78 

United  States  v.  Heinze,  218  U.  S.  532    115 

United  States  v.  Joint  T.  Assn.,  171  U.  S.  505   8,  191,  213,  245 

United  States  v.  Lake  S.  &  M.  S.  Ey.  Co.,  203  U.  S.  295 8 

United  States  v.  Lane,  228  U.  S.   6    127 

United  States  v.  Lee,  106  U.  S.  196   353,  354,  356,  357 

United  States  v.  Lehigh  V.  E.  Co.,  220  U.  S.  257   8 

United  States  v.  Lynah,  188  U.  S.  445    115 

United  States  v.  Mason,  213  U.  S.  115  360 

United  States  v.  Matthews,   146  Fed.  306    63 

United  States  v.  Miller,  223  U.  S.  599   8,  14,     30 

United  States  v.  New  Y.  C.  &  H.  E.  E.  Co.,  212  U.  S.  509    9 

United  States  v.  New  Y.  C.  &  H.  E.  E.  Co.,  153    Fed.    630    26 

United  States  v.  Nickerson,   17  How.  204    359 

United  States  v.  Nord  Deutscher  Lloyd,  223  U.  S.  512 2,  206 

United  States  v.  Old  Settlers,  148  U.  S.  427  180 

United  States  v.  Oregon  E.  &  N.  Co.,  163  Fed.  640  87 

United  States  v.  Ormsbee,  74  Fed.  207  79 

United  States  v.  Eandenbush,  8  Pet.  288   359 

United  States  v,  Eeese,  92  U.  S.  214  376 

United  States  v.  Eice,  4  Wheat.  246   205 

United  States  v.  Eichards,  35  D.  C.  App.  540    51,     90 

United  States  v.  Seaboard  Ey.  Co.,  82  Fed.  563   9,     26 

United  States  v.  Standard  Oil  Co.,  155  Fed.  305   9 

United  States  v.  Terminal  E.  Assn.,  224  U.  S.  383   8,     32 


420  TABLE  OF  CASES. 

References  ake  to  Pages. 

United  States  v.  The  Frank  Sylvia,  37  Fed.  155   43 

United  States  v.  Trans-Missouri  F.  Assn.,  166  U.  S.  290 8 

'United  States  v.  Union  P.  R.  Co.,  226  U.  S.  61 8 

United  States  v.  Union  S.  Y.  &  T.  Co.,  226  U.  S.  286  32 

United  States  v.  Vacuum  Oil  Co.,  158  Fed.  536    9,  14 

United  States  v.  Williams,  194  U.   S.   279    362 

United  States  v.  Williams,  6  Mont.  379    97 

United  States  v.  Wood,  145  Fed.  405    26 

United  States  v.  Zucker,  161  U.  S.  475   362 

United  States  T.  Co.  v.  Central  U.  T.  Co.,  202  Fed.  66   345 

Utter  V.  Franklin,  172  U.  S.  416   54 

V. 

Vail  V.  Arizona,  207  U.  S.  201    187 

Valentina  v.  Mercer,  201  U.  S.  131   207 

Validly  V.  Board  of  Park  Comrs.,  16  N.  D.  25  63 

Vandalia  R.  Co.  v.  Railroad  Comn.,  Ind.,  101  N.  E,  85 82 

Veazie  v.  Moor,  14  How.  568   27,  43 

Venner  Co.  v.  Urbana  Waterworks,  174  Fed.  348  285 

Vermont  &  M.  R.  Co.  v.  Fitchburg  R.  Co.,  63  Mass.  369  66 

Vicksburg  v.  Vicksburg  W.  Co.,  206  U.  S.  496   179,  335,  342,  343 

Vicksburg  v.  Vicksburg  W.  Co.,  202  U.  S.  453   330 

Vicksburg,  S.  &  P.  R.  Co.  v.  Dennis,  116  U.  S.  665   337 

Village  of  Little  Chute  v.  Van  Camp,  136  Wis.  526   63 

Vining  v.  Detroit,  Y.,  A.  A.  &  J.  Ry.,  133  Mich.  539  39 

Virginia  v.  Rives,  100  U.  S.  313    123,  255 

Virginia  Coupon  Cases,  see  Poindexter  v.  Greenhow 

Virginia,  Ex  parte,  100  U.  S.  339  155,  252,  255 

W. 

Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illinois,  118  U.  S.  557  .  11,  16,  27,  38,  39,  75 
Walker  v.  Sauvinet,  92  U.  S.  90 

116,  122,  130,  132,  139,  140,  160,  164,  169,  171,  175,  363,  371 

Walker  v.  Towle,  156  Ind.  639   83 

Wall,  Ex  parte,  48  Cal.  279   89 

Wallace  v.  Arkansas  C.  R.  Co.,  118  Fed.  422   307,  316 

Walla  Walla  v.  Walla  Walla  W.  Co.,  172  U.  S.  1   331 

Walton  v.  Greenwood,  60  Me.  356  87 

Ward  V.  State,  154  Ala.  227   89 

Ward  L.  Co.  v.  Henderson-White  M.  Co.,  107  Va.  626 198 

Washington  v.  Fairchild,  224  U.  S.  510   123,  137,  139,  212 

Washington  M.  Co.  v.  Great  N.  Ry.  Co.,  43  Wash.  658   325 

Washington  S.  Ry.  Co.  v.  Commonwealth,  112  Va.  515   ...  .20,  21,  310,  325 

Water,  L.  &  G.  Co.  v.  Hutchinson,  207  U.  S.  385  337 


TABLE  OF  CASES.  421 

KeFEEENCES    ABE    TO    PAGES. 

Waters-Pierce  Oil  Co.  v.  Deselms,  212  U.  S.  159  190 

Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S.  86   145,  200,  265,  364 

Watkins  v.  Lessee  of  Holman,  16  Pet.  25 60 

Watson  V.  Maryland,  218  U.  S.  173   132,  200,  209 

Wayman  v.  Southard,  10  Wheat.  1   61,  80,  93,  95,     97 

Webster  v.  Superior  Court,  67  Wash.  37   65,     69 

Weems  v.  United  States,  217  U.  S.  349 190,  213,  265,  369,  371 

Weems  S.  Co.  v.  People's  S.  Co.,  214  U.  S.  345   33 

Welch  V.  Swasey,  214  U.  S.  91 48,  81,  134,  209,  210,  212,  215 

Wellman  v.  Chicago  &  G.  T.  Ey.  Co.,  83  Mich.  592  263 

Welton  V.  Missouri,  91  U.  S.  275 13 

West  V.  Kansas  N.  G.  Co.,  221  U.  S.  229 5 

West  V.  Louisiana,  194  U.  S.  258  56,  116,  132,  185,  200 

West  C.  S.  E.  Co.  V.  People,  201  U.  S.  506   209,  210,  229,  343 

Westerfelt  v.  Gregg,  12  N.  Y.  202   139 

Western  Ey.  of  Alabama  v.  Eailroad  Comn.,  197  Fed.  954 279,  293 

Western  T.  Assn.  v.  Greenberg,  204  U.  S.  359 121,  134,  218,  245 

Western  U.  T.  Co.  v.  Andrews,  216  U.  S.   165    358 

Western  U.  T.  Co.  v.  Call  P.  Co.,  181  U.  S.  92 12 

Western  U.  T.  Co.  v.  Chiles,  214  U.  S.  274    204 

Western  U.  T.  Co.  v.  Chiles,    107   Va.   60    12 

Western  U.  T.  Co.  v.  Commercial  M.  Co.,  218  U.  S.   406    12,     56 

Western  U.  T.  Co.  v.  Crovo,  220  U.  S.  364    13 

Western  U.  T.  Co.  v.  James,  162  U.  S.  650   12 

Western  U.  T.  Co.  v.  Kansas,  216  U.  S.  1 

5,  16,  41,  42,  121,  122,  139,  205,  347 

Western  U.  T.  Co.  v.  Missouri,  190  U.  S.  412   290 

Western  U.  T.  Co.  v.  Myatt,  98  Fed.  335 47,  59,  106,  111,  129,  207 

Western  U.  T.  Co    v.  Pennsylvania,  195  U.  S.  540   270 

Western  U.  T.  Co.  v.  Eailroad  Comn.  of  La.,  120  La.  758   174 

Western  U.  T.  Co.  v.  State,  31  Okla.  415    275,  293 

Westfield  G.  &  M.  Co.  v.  Mendenhall,  142  Ind.  538   39 

West  Virginia  v.  Dent,  25  W.  Va.  1   191 

West  Virginia  N.  E.  Co.  v.  United  States,  134  Fed.  198  108 

West  V.  T.  Co.  V.  Sweetzer,  25  W.  Va.  434   336 

Wetmore  v.  Karrick,  205  U.  S.  141   122,  137 

Wheeler  v.  United  States,  226  U.  S.  478    366,  368 

Wheeler's  Appeal,  45  Conn.  306    48,     60 

White  V.  Hart,  13  Wall.  646   330 

White  V.  Toledo,  St.  L.  &  K.  C.  E.  Co.,  79  Fed.  133 61 

Whitehead  v.  Shattuck,  138  U.  S.  146 363 

Whitfield  V.  Aetna  L.  I.  Co.,  205  U.  S.  489 191 

Whiting  V.  Townsend,   57   Cal.   515    61 

Whitley,  Ex  parte,  144  Cal.  167   82 

Wight  V.  Davidson,  181  U.  S.  371    117 

Wight  V.  United  States,  167  U.  S.  512 9 


422  TABLE  OF  CASES. 

REFEBENCES    ABE    TO    PAGES. 

Wilkes  County  v.  Coler,  180  U.  S.  506 333 

Wilkinson  v.  Lane,  Ala.,  62  So.  31    52 

Wilkinson  v.  Leland,    2    Pet.   627    201 

Willcox  V.  Consolidated  G.  Co.,  212  U.  S.  19 228,  230,  240,  262, 

264,  273,  277,  285,  286,  309,  311,  312,  313,  317,  320,  321,  328,  376 

Williams  v.  Arkansas,  217  U.  S.  79   209,  245,  258,  260 

Williams  v.  Bruffy,  96  U.  S.  176  331 

Williams  v.  Fears,  179  U.  S.  270   245 

Williams  v.  Mississippi,  170  U.  S.  213    255 

Williams  v.  Parker,  188  U.  S.  491   229 

Wilmington  S.  M.  Co.  v.  Fulton,  205  U.  S.  60 56 

Wilson  V.  North  Carolina,  169  U.  S.  586  132,  200 

Wilson  V.  Standefer,  184  U.  S.  399   333 

Wilson  V.  United  States,  221  U.  S.  361   366,  367,  368 

Winchester  &  L.  T.  R.  Co.  v.  Croxton,  98  Ky.  739 309,  339 

Winchester  &  S.  E.  Co.  v.  Commonwealth,  106  Va.  264   48,  107,  137 

Winous  P.  S.  C.  V.  Caspersen,  193  U.  S.  189  115 

Winston  v.  Stone,  102  Ky.  423  61 

Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  179  U.  S.  287 209,  327 

WolflF  V.  New  Orleans,  103  U.  S.  358  334,  335 

Wong  Wing  v.  United  States,  163  U.  S.  228  362 

Wood  V.  Chesborough,  228  U.  S.  672  370 

Wood  V.  Vandalia  R.  Co.,  231  U.  S.  1    304,  308,  309,  325 

Wood,  Ex  parte,  155  Fed.  190   264 

Woodruff  V.  Trapnall,  10  How.  190 335 

Woods  &  Sons  v.  Carl,  203  U.  S.  358 80,  218 

Wlight  V.  Georgia  R.  &  B.  Co.,  216  U.  S.  420 278,  339 

Wulf  V.  Kansas  City,  77  Kan.  358   53 

W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452  133,  245 


Yazoo  &  M.  V.  R.  Co.  v.  Greenwood  G.  Co.,  227  U.  S.  1   15 

Yazoo  &  M.  V.  R.  Co.  v.  Vicksburg,  209  U.  S.  358    339 

Yesler  v.  Washington  H.  L.  Comrs.,  146  U.  S.  646 174,  233,  234 

Yick  Wo  V.  Hopkins,  118  U.  S.  356  124,  177,  209,  210,  214,  256 

Young,  Ex  parte,  209  U.  S.  123 

57,  128,  226,  227,  232,  256,  264,  266,  314,  354,  358 

Z. 

Zakonaite  v.  Wolf,  226  U.  S.  272   113 

Zuber  v.  Southern  Ry.  Co.,  9  Ga.  App.  539 96 


INDEX. 


KEFEBENCES   ABE  TO    SECTIONS. 

ACTUAL  COST. 
See  Cost. 

ADMINISTRATIVE  ORGANS. 
Limited  power  of,  37. 

Judicial  review  of  administrative  orders,  51,   116. 
See  also  Delegation. 

ADMIRALTY,  23. 

ALTERATION  OF  CONTRACTS. 
Under  reserved  power,  199. 

AMENDMENT  OF  CONTRACTS. 
Under  reserved  power,  199. 

AMENDMENTS. 

Comparison  of  Fifth  and  Fourteenth,  53-55,  86,  126,  127,  131. 
Fourth,  213. 
Fifth,  indictment,  207. 
Fifth,  double  jeopardy,  208. 
Fifth,  compulsory  testimony,  212. 
Fifth,  due  process,  52-132,  148,  209. 
Fifth,  just  compensation,  148. 
Sixth,  210,  214. 
Seventh,  211. 
Eighth,  215. 
Ninth,  96. 
Tenth,   12,  note. 
Eleventh,  204-206. 

Fourteenth,  due  process,  52-132,  148,  209. 
Fourteenth,  equal  protection,  133-146,  149. 

Fourteenth,  did  not  radically  change  whole  theory  of  government, 
87,  105,  146. 

AMOUNT  OF  RETURN. 
See  Eabnings. 

ANTI-TRUST  ACT. 

Within  power  of  Congress  to  enact,  6. 

423 


424  INDEX. 

EeFEBENCES  ABE  TO  SbXJTIONS. 

APPORTIONMENT  OF  VALUATION. 

Between  interstate  and  intrastate  transportation,  165. 
Between  freight  and  passenger  transportation,    165. 
Between  particular  classes  of  traffic,   166. 
Unprofitable  parts  of  the  property,  157,  167. 

APPRECIATION  IN  VALUE. 

As  earnings,  175. 

ARBITRARY  GOVERNMENTAL  ACTION. 

Bearing  of  due  process  provision,  89,   105,   116,   117. 
Bearing  of  equal  protection  provision,  137,  139,  140,  146. 

ASCERTAINMENT  OF  FACTS. 

Delegation  of  legislative  power,  43. 

AVERAGE  PRICE. 

Bearing  on  present  cost,  158. 

BETTERMENTS. 

As  operating  expenses,  173. 
As  additions  to  principal,  175. 

BILLS  OF  LADING. 

Local  bills  do  not  show  transportation  is  strictly  intrastate,  16. 

BOATS. 

See  Admiralty,  Continuous  Highways,  Feebies. 

BONDS. 

As  showing  value  of  property,  156,  163,  168,  174,  note. 
Payments  on,  as  operating  expenses,  174,  182. 

CAB  SERVICE. 

Whether  interstate  transportation,  20. 

CAPITALIZATION. 

As  showing  value  of  property,  156,  163,  168. 
Of  earning  capacity,  162,  168,  174. 

CARTAGE. 

Whether  interstate  transportation,  20. 

CHARTERS. 

Federal  charters  and  state  regulation,  21. 
State  charters  and  federal  regulation,  21. 


1 


INDEX.  425 

EeFEEENCES  ABE  TO   SECTIONS. 

Do  not  limit  state  by  mere  implication,  193,   194. 
Eeserved  power  to  alter,  amend  or  repeal,  199. 
See  also  Contracts. 

CLASSIFICATION. 

Bearing  of  equal  protection  provision,  139,  140,  143. 

COMMERCE  CLAUSE. 
'    Stated,  1. 

As  implied  restraint  on  state,  position  of  Supreme  Court,  3. 
As  implied  restraint  on  states,  discussed,  2,  4,  5. 
See  also  Interstate  Eates,  Local  Eates,   Sepabate  Inteastatb 
Tbanspobtation,  Continuous  Highways,  Chaetebs. 

COMMISSIONS. 

See   Delegation    of   Legislative   Power  ;    Intebstate   Commebck 
Commission. 

COMMON  LAW. 

As  to  interstate  commerce,  8. 

Power  of   legislature  to  change,  33,  49,   50,   81,   82,   118,   123,   152, 

179,  197. 
Suits  at,  under  Seventh  Amendment,  211. 

COMPARISON  OF  AMENDMENTS. 

Fifth  and  Fourteenth,  53-55,  86,  126,  127,  131. 

COMPENSATION. 

See  Just  Compensation. 

COMPULSOEY  TESTIMONY. 
Against  one's  self,  212. 

CONSTITUTIONAL  EIGHTS. 
Waiver,  21,  22. 
Constitutional  and  extra-constitutional  restraints,  92-104. 

CONSTEUCTION  COSTS. 
See  Valuation. 

CONSTEUCTION  OF  CONSTITUTION. 

Power  to  declare  legislation  unconstitutional,   93. 

Different  tests  of  constitutionality,  63,  67,  70,  71,  92. 

Following  state  decisions,  63. 

Questions  which  may  be  brought  before  court,  216. 

Eules  of  construction,  217. 

Partial  unconstitutionality,  218. 


426  INDEX. 

Eeferences  abp:  to  Sections. 
CONTEXT. 

In  Fifth  Amendment,  argiunent  from,  74,  75,  127,  131. 
In  Fourteenth  Amendment,  74,  75,   126,   127,   131. 

CONTINGENT  LEGISLATION. 

As  delegation  of  legislative  power,  44,  45. 

CONTINUOUS  HIGHWAYS. 

As  channels  of  interstate  commerce,  16,  23,  24,  25. 

CONTRA.CTS. 

Of  carrier  with  shipper  as  affecting  governmental  control,  17,  18,  198. 
Of  carrier  with  one  government  to  avoid  regulation  by  another,  21. 
Of  carrier  with  government  as  estopping  carrier  from  alleging  un- 
constitutionality, 22. 
See  also  Impaibment  of  Contbacts. 

COEPORATIONS. 

"Persons"  within  meaning  of  Constitution,  57,  135,  208. 
Federal  and  state  incorporation,  21,  22. 
Foreign,  22,  138. 

COST. 

Of  road,  bearing  on  valuation,  156,  163,  168. 
Of  reproducing  road,  157,  170. 
Of  creating  corporation,   160. 
Of  creating  clientage,  161. 

COURTS. 

General  extent  of  power,  49. 

Internal  organization,  28,  36. 

Power  over  rates  at  common  law,  8,  33. 

Distinction  between  judicial  and  legislative  power  over  rates,  50. 

Review  of  administrative  orders,  51,  116. 

See  also  Enfoecement  of  Law. 

DAMAGES. 

Payments  as  operating  expenses,  172. 

DECISIONS. 

Administrative,  judicial  review  of,  51,  116. 
Judicial,  as  impairing  contracts,  190. 

DECLARING  LEGISLATION  UNCONSTITUTIONAL. 

Inconsistent  positions  taken,  92. 
Power  to  declare  unconstitutional,  93. 


1 


INDEX.  427 

ReFEBENCES  ABE  TO   SECTIONS. 

General  duty  to  enforce  legislation,  94. 

Passing  upon  wisdom  or  justice,  95. 

The  Ninth  Amendment,  96. 

Rule  stated  in  Twining  v.  New  Jersey,  97. 

Extra-constitutional  restraints  and  rights,  98. 

DELEGATION  OF  LEGISLATIVE  POWERS. 
General  rule,  38. 
Position  taken,  39. 
Authorities  on  rate-making,  40,  41. 
Ascertainment  of  facts,  43. 
Contingent  legislation,  44,  45. 
Grants  of  discretion,  46,  91,  116. 
Do  the  statutes  establish  definite  principles?  47,  48. 
Delegation  to  courts,  50. 

DEPRECIATION. 

Must  be  considered  in  fixing  value,  155,  170. 
Bearing  on  operating  expenses,  173,  175. 

"DEPRIVATION." 

Is  a  change  of  law  a  "deprivation"?  111. 

DETAILED  REGULATIONS. 

Under  equal  protection  provision,  139. 

DIFFERENTIALS. 

As  preferences  to  ports,  203. 

DTSt'RETION,  GRANTS  OF. 

As  delegations  of  legislative  power,  46,  48. 
Discrimination,  91. 
Arbitrary  power,  116. 

DISCRianNATION. 

Bearing  of  due  process  provision,  89-91,  151. 

Bearing  of  equal  protection  provision,   137-140,   145,   151. 

DISTRIBUTION  OF  GOVERNMENTAL  POWERS. 
General  rule,  26. 

Federal  and  state  problems  distinct  but  similar,  27. 
Among  three  departments,  26,  36,  82. 
Not  complete,  29. 
Exceptions  to  general  rules,  28. 
Local  self  government,  28,  44. 
Legislature,  extent  of  power  of.     See  Legislatuee. 


428 


INDEX. 


Refebences  are  to  Sections. 

Administrative  organs,  limited  power  of,  37. 
Administrative  organs,  delegation  of  power  to. 
Courts.    See  Courts. 


See  Delegation. 


DIVIDENDS. 

Returns  on  value,  not  on  capitalization.  Chap.  6. 
As  operating  expenses,  174. 
Comparison  with  interest  on  bonds,  182. 

DONATED  PROPERTY. 

Bearing  on  valuation,  156,  note,  183. 

DOUBLE  JEOPARDY. 

Provision  in  Fifth  Amendment,  208. 

DUE  PROCESS  CLAUSES. 

Stated,  52. 

Compared,  53-55,  86,  126,  127,  131. 

Importance,  56. 

"Persons"  protected,  57. 

"State"  restrained,  58,  74. 

Federal  government  restrained,  59. 

Organs  for  limiting  rates,  60. 

Procedure  in  limiting  rates,  64. 

Procedure  in  enforcing  regulations,  65. 

Suitable  procedure  in  general,  63,  65. 

Proper  scope  of  provision,  61. 

Position  of  court,  62. 

No  complete  general  statement  of  scope,  67. 

No  complete  general  statement  of  reasons  for  decisions,  71. 

Particular  lines  of  decision,  68. 

Substantive  restraint,  66,  72. 

Different  tests  of  constitutionality,  68,  70,  92  et  seq.,  105  et  seq. 

Discussion — Chap.  4. 

Are  all  organs  necessarily  restrained?  73. 

Is  restraint  necessarily  more  than  procedural?  75. 

Arbitrary  governmental  action,  89,   105,  115,  116. 

Argument  concerning  redundancy,  86-88,  126. 

Deprivation  by  change  of  law.  111. 

Discriminatory  governmental  action,  89-91. 

"Essential  nature  of  all  free  governments,"   102,   103. 

Fundamental  rights,  92,  101,  103. 

Inalienable  rights,  92,  99,  103. 

Just  compensation,  119-126,  148. 

See  Law  of  the  Land. 

Natural  justice,  98,  100,  103,  113,  123. 


INDEX.  429 

ReFEBENCES  ABE  TO   SECTIONS. 

Private  property,  taking  for  private  use,  124. 

See  Reasonableness. 

"Scope  of  governmental  authority,"  104. 

EARNING  CAPACITY. 

Capitalization  of,  162,  168,   174. 

EARNINGS. 

Net,  not  gross,  fix  rate  of  return,  175. 

Appreciation  in  value,  175. 

Interstate  and  intrastate  to  be  separated,  12,  175. 

Probable  earnings  under  new  rates,  176. 

Subject  to  requirement  of  rates  fair  to  public,  177. 

Return  fair  to  railroad,  178. 

Constitutional  rate  of  return,   179,  180,   181. 

Distribution  between  stockholders  and  bondholders,  182. 

Exceptional  conditions,  183. 

Rates  on  particular  classes  of  traffic,  184-188,  165,  166. 

Mileage  books,  187. 

EIGHTH  AMENDMENT. 

Excessive  punishments,  215. 

ELEVENTH  AMENDMENT. 

General  rule  as  to  suits  against  the  government,  204. 
What  governments  come  within  the  rule,  205. 
Suits  against  public  officials,  206. 

ENFORCEMENT  OF  LAW. 

Nature  of  power  of  courts,  49. 

Distinction  between  judicial  and  legislative  power,   50. 

Distinction  between  judicial  and  administrative  power,  51. 

Indictment,  207. 

Putting  twice  in  jeopardy,  208. 

Notice  and  hearing,  65,  209. 

Trials  in  criminal  cases,  75,  210. 

Suits  at  common  law,  211. 

Self-incrimination,  212. 

Unreasonable  searches  and  seizures,  213. 

Other  testimony,  214. 

Punishment,  215. 

Suits  against  the  government,  204,  205. 

Suits  against  public  officials,  206. 


430  INDEX. 

References  abe  to  Sections. 

EQUAL  PROTECTION  PROVISION. 
Clause  stated,  133. 

Organs  of  government  restrained,  134. 
"Persons"  protected,  135. 
Some  state  actions  forbidden,   136. 
Rate  regulation,  138,  141,  145. 
Excessive  penalties,   145. 

Arbitrary   governmental   action,    137,   139,   140,    146. 
Classification,  139,  140,  143. 
Discrimination,  136,  137,  138. 
Just  compensation,  146. 
Reasonableness,  146. 

"ESSENTIAL  NATURE  OF  ALL  FREE  GOVERNMENTS,"  102,  103. 

ESTOPPEL  TO  ASSERT  UNCONSTITUTIONALITY,  22. 

EXCEPTIONAL  CONDITIONS. 

Allowing  exceptional  rate  of  return,  183. 

EXCESSIVE  INVESTMENT. 

Excess  not  entitled  to  revenue,  157,  167. 

EXCESSIVE  PUNISHMENT. 

Restraint  by  Eighth  Amendment,  215. 
Restraint  by  Fourteenth  Amendment,  145,  215. 

EXCLUSIVE  POWER. 

Under  commerce  clause,  2-5. 

EXPENSES. 

See  Opeeating  Expenses. 

EXTRA-CONSTITUTIONAL  RESTRAINTS,  92-104. 

EXTRA-TERRITORIALITY,  104. 

FEDERAL  INCORPORATION. 

Of  interstate  carriers,  21,  22. 

FERRIES. 

Interstate  rates,  7. 

FIFTH  AJIENDMENT. 
Indictment,    207. 
Double  jeopardy,  208. 
Compulsory  testimony,  212. 
Due  process,  52-132,  148,  209. 
Just  compensation,    148. 


I 


INDEX.  i31 

Eefeeences  are  to  Sections. 

FINALITY  OF  DECISION. 

Of  administrative  organs,  51,  116. 

Of  state  courts  on  state  constitutions  and  laws,  87. 

FIXED  CHARGES. 

Payments  on  bonds  not  operating  expenses,  174,  182. 
Payments  on  leases,  174. 

FOURTEENTH  AMENDMENT. 

Circumstances  of  adoption,  74,  75,  136. 

Did  not  radically  change  whole  theory  of  government,  87,  105,  146. 

See  also  Due  Peocess  Clauses;  Equal  Pbotection  Pbovision. 

FOURTH  AMENDMENT. 

Unreasonable  searches  and  seizures,  213. 

FRAUDULENT  ADLHNISTRATIVE  ACTION. 
As  violating  due  process  provision,  90. 

FREE  GOVERNMENTS. 

"Essential  nature  of  all  free  governments,"  102,  103. 

FUNDAMENTAL  RIGHTS. 

Protection  against  governmental  action,  92,  101,  103. 

GOING   CONCERN. 

Established  business  as  element  of  value,  161. 

GOOD  WILL. 

As  element  of  value,  161. 

"GRADUAL  PROCESS  OF  JUDICIAL  INCLUSION  AND  EXCLUSION," 
67,  132. 

GRAIN  ELEVATORS. 

As  instruments  of  commerce,  20. 

GRANTS  OF  DISCRETION. 

As  delegations  of  legislative  power,  46,  48. 
Discrimination,  91. 
Arbitrary  power,  116. 

IMPAIRMENT  OF  CONTRACTS. 
The  provision,  188. 
"Laws"  forbidden,  189. 
Judicial  decisions,  190. 


432  INDEX. 

References  are  to  Sections. 

Executory  and  executed  contracts,  191. 

Express  contracts  with  government,  191,  192,  197. 

Implied  contracts,  193,   194. 

Limitations  upon  power  to  contract,  195-198. 

Eeserved  power  to  alter,  amend  or  repeal,  199. 

IMPEOPER  MOTIVES. 

As  rendering  governmental  action  unconstitutional,  90. 

INALIENABLE  RIGHTS. 

Protection  against  governmental  action,  92,  99,   103. 

INCORPORATION. 

Effect  of,  21,  22. 

Expenses  of,  160. 

Federal  and  statie,  21,  22. 

Foreign,  22,  138. 

"Persons,"  57,   135,  208. 
INDICTMENT. 

Provision  in  Fifth  Amendment,  207. 

INTEREST. 

Current  rate  as  showing  just  compensation,  181,  notes. 

INTERPRETATION  OF  CONSTITUTION. 
See  CoNSTKUCTioN  OF  Constitution. 

INTERSTATE  COMMERCE  ACT. 

Effect  on  state  regulations,  6-10,  14. 

Auxiliary  services,  20. 

Delegation  of  legislative  power  to  Commission,  48. 

INTERSTATE  HIGHWAYS. 

As  channels  of  interstate  commerce,  16,  23,  24,  25. 

INTERSTATE  RATES. 

Subject  to  Congress,  6. 

Instances  of,  7. 

At  common  law,  8. 

State  laws  "affecting  but  not  regulating"  interstate  commerce,  9. 

Local  rates  which  affect  interstate  rates  indirectly,  11. 

Local  rates  which  affect  interstate  rates  directly,  12. 

See  also  Separate  Intrastate  Transportation. 

INTRASTATE  RATES. 

See  Local  Rates;  Separate  Intrastate  Transportation. 


INDEX.  433 

Refebencb:s  abe  to  Sections. 
INVESTMENT. 

Bearing  on  valuation,  156. 

JEOPARDY. 

Putting  twice  in  jeopardy,  208. 

JUDICIAL  DECISIONS. 

Finality,  58,  60,  63,  65,  70,  85,  190,  209,  216. 
Impairment  of  contracts,  190. 

"JUDICIAL  INCLUSION  AND  EXCLUSION,"  67,  132. 

JUDICIAL  POWER. 
See  CoUETS. 

JURY. 

Trials  in  criminal  cases,  75,  210. 
Suits  at  common  law,  38,  note,  211. 

JUST  COMPENSATION. 

Provision  in  Fifth  Amendment,  147. 
Due  process  and  just  compensation,  119-126,  148. 
Equal  protection  and  just  compensation,  146,  149. 
Requirement  limits  power  to  regulate  rates,  150. 
Indemnification  for  unreasonable  regulations,   153. 
Amount  of  return,  154.     See  also  Eabnings. 
See  Valuation. 

JUSTICE  OF  GOVERNMENTAL  ACTION. 
Power  of  court  to  pass  upon,  95. 

LAW  OF  THE  LAND. 

Provision  akin  to  due  process  provision,  76,  79-81,  86,  88. 

Due  process  in  England,  78. 

Law  of  land  in  England,  77. 

Law  of  land  in  America,  81. 

Not  unchangeable,   83. 

How  may  it  be  changed?  82. 

Different  in  different  states,  84. 

Judicial  alteration  of,  85. 

LEGISLATURE. 

General  extent  of  power,  31,  33. 
Power  over  rates,  32-34. 
Power  to  change  common  law,  33. 
Detailed  regulations,  35. 

28 


434  INDEX. 

References  abe  to  Sections. 

May  entrust  some  powers  to  other  departments,  36. 

Procedure,  64. 

See  also  Delegation  of  Legislativp;  Power. 

LIBERTY. 

True  meaning,   128. 

Position  of  court  on,  129-131. 

LOCAL  OPTION. 

As  delegation  of  legislative  power,  30,  44. 

LOCAL   RATES. 

What  are,   10. 

Local  rates  which  affect  interstate  rates  indirectly,  II. 
Local  rates  which  aflfect  interstate  rates  directly,    12. 
See  also  Separate  Intrastate  Transportation. 

LOCAL  SELF-GOVERNMENT. 

Grant  of,  as  delegation  of  legislative  power,  30,  44. 

LONG  AND  SHORT  HAUL. 

Bearing  of  equal  protection  provision,  144. 

MAGNA  CARTA. 

Provision  for  law  of  the  land,  76,  77,  128. 
Grant  of,  128,  noto. 
John  Marshall,  128,  note. 

MAINTENANCE. 

What  constitutes,  173. 

See  also  Operating  Expenses. 

MARKET  VALUE. 

As  basis  for  estimating  rate  of  return,  161,  162,  163,  168,  174. 

MASSACHUSETTS  DECISIONS. 

On   unreasonable  legislation,   115. 

MILEAGE  BOOKS. 

May  state  compel  issue  at  reduced  rates?  187. 

MOTIVES. 

As  affecting  constitutionality,  90. 

MUNICIPALITIES. 

See  Ordinances. 


INDEX.  435 

References  are  to  Sections. 

NATURAL  JUSTICE. 

Protection  against  governmental  infringement,  98,  100,  103,  113,  123. 

NATURAL  RIGHTS. 

Protection  against  governmental  infringement,  98,  100,  103,  113,  123. 

NAVIGATION  LAWS. 

State  and  federal  regulation,  16,  20. 

NECESSITY  OF  GOVERNMENTAL  ACTION. 
Judicial  inquiry,  106. 

NET  EARNINGS. 

See  Earnings. 

NINTH  AMENDMENT. 

Reserved  rights,  96. 

OPERATING  EXPENSES. 

Transportation,  171,  172. 

Maintenance,  171,  173,  164. 

Betterments,  173. 

Depreciation,  173,  175. 

Taxes,  171. 

Dividends  and  interest,  174. 

Securing  business,  172. 

Damage  claims,  172. 

Local  transportation  costs  more  than  through  transportation,  172. 

ORDINANCES. 

Exercises  of  local  self-government,  30. 
Equivalent  to  state  action,  58,  134. 
Reasonableness,   108. 
Impairing  contracts,  189,   192,   196. 

ORIGINAL  PACKAGES. 

State  regulation,  15,  16,  18. 

PARTICULAR  RATES. 

Decisions  on  considering  schedule  as  entirety,  184. 
Discussion  on  considering  schedule  as  entirety,  186. 
Decisions  on  particular  rates,  185. 
Mileage  books,  187. 

PERCENTAGE  OF  RETURN. 

Constitutional  rate  of  return,   179,   180,  181. 
See  also  Earnings. 


436  INDEX. 

RbTEBENCES  ABE  TO   SECTIONS. 

"PERSONS." 

Term'  includes  corporations,  57,  135,  208. 

PLANT. 

See  Valuation. 

POLICE  POWER. 

Reasonable  regulations,   109. 
Meaning  of  term  "police  power,"  110. 
Reasonableness  under  due  process  provision,  111-113. 
How  far  contracts  subject  to,  197,  198. 

PORTS. 

Preferences  to,  see  Pkefebexces  to  Poets. 

PREFERENCES  TO  PORTS. 
Provision,  200. 

Organs  of  government  restrained,  201. 
Rate  regulation  in  general,  202. 
Differentials,  203. 

PRIVATE  PROPERTY. 

Taking  for  private  use,  124. 

Taking  for  public  use,  see  Just  Compensation. 

PROCEDURE. 

Procedure  in  limiting  rates,  64. 

Procedure  in  enforcing  regulations,  65. 

Suitable   procedure   in  general,   63,   65. 

Indictment,  207. 

Notice  and  hearing,  65,  209. 

Trials  in  criminal  cases,  210. 

Suits  at  common  law,  211. 

See  also  Due  Peocess  Clauses;  Enfokcement  of  Law. 

PROPERTY. 

Donated,  156,  note,  183. 
See  also  Peivate  Pkopebtt. 

RATE-MAKING. 

Legislative  power,  34. 

Limited  power  of  administrative  organs,  37. 

By  commission,  38  et  seq. 

Contingent  legislation,  45. 

Judicial  participation,  60. 


INDEX.  437 

ReFEBENCES   ABE  TO   SECTIONS. 


RATE  OF  RETURN. 
See  Eabnings. 


RATES. 

See  Reasonable  Rates;  Paeticulab  Rates. 

REASONABLENESS. 

Of  governmental  action  in  general,  105-118. 

Of  ordinances,  108. 

Police  power,  109. 

Natural  justice,  113. 

Equal  protection  provision,  146. 

Rate  regulations,  118,  121,  151-153,  159. 

REASONABLE   RATES. 

At  common  law,  8,  33. 

Is  term  definite?  48. 

Constitutional  requirement,   118,   121,   151-153,   159. 

See  also  Eabnings. 

REDUNDANCY,  ARGUMENT  FROM. 

Bearing  on  meaning  of  due  process  requirement,  86-88,  126. 

REFERENDUM. 

Submission  to  voters  of  entire  state,  44. 
Submission  to  voters  of  locality,  30,  44. 

REPEAL  OF  CONTRACTS.  199. 

REPRODUCTION  OF  PLANT. 
See  Valuation. 

RESERVED  RIGHTS. 

Under  Ninth  Amendment,  96. 

RESERVED  POWER  TO  ALTER,  AMEND  OR  REPEAL,  199. 

RETROACTIVE  LAWS,  50. 

REVENUE. 

See  Eabnings. 

SAFETY  APPLIANCE  CASES. 

Validity  and  scope  of  federal  act,  16,  25. 

"SCOPE  OF  GOVERNMENTAL  AUTHORITY,"  104. 


438  INDEX. 

References  ake  to  Sections. 

SCHEDULE  OF  RATES. 
Publishing,  9. 
Whether  schedule  as  entirety  must  be  considered,  184-187. 

SEARCHES  AND  SEIZURES. 

Restraint  by  Fourth  Amendment,  213. 

SEPARATE  INTRASTATE  TRANSPORTATION. 
The  problem,  13. 
The  test,  14. 
Tax  cases,  15. 
Original  package  cases,  15. 
Some  rates  under  federal  control,  16. 
Separate  contracts,  17,  18. 
Undisclosed  intentions,  19. 
Safety  Appliance  Act,  16,  25. 
Continuous  highways,   16,  23,  24. 
Auxiliary  services,  20. 
Terminal  services,  20. 
Switching,  20. 
Grain  elevators,  20. 
Navigation  laws,  20,  23. 
Wharfage,  16,  20. 
Cab  service,  20. 
Cartage,  20. 

SEPARATION  OF  GOVERNMENTAL  POWERS. 

See  DisTEiBUTioN  of  Govebnmental  Powers. 

SEVENTH  AMENDMENT. 
Jury  trials,  211. 

SILENCE  OF  CONGRESS. 

Bearing  on  state  regulation  of  commerce,  2-9. 

SIXTH  AMENDMENT. 

Place  and  manner  of  trial,  210. 

STANDING  MUTE,  77. 

"STATE." 

Significance  of  term  in  Fourteenth  Amendment,  58,  74,  134,   136. 
Impairment  of  contract  clause,  189. 

STOCK  AND  BONDS. 

Basing  valuation  on,  156,  163,  168. 


INDEX.  439 

Eefeeences  are  to  Sections. 

Payments  on,   as  operating  expenses,   174. 

Distribution  of  earnings  between  stockholders  and  bondholders,  182. 

SUBSTANTIVE  RESTRAINT. 

Due  process  provision  as  substantive  restraint,  66  et  seq. 
Is  due  process  provision  necessarily  such?  72  et  seq. 

SWITCHING. 

State  and  federal  regulation,  20. 

TAXES. 

Under  commerce  clause,  15. 

Under  equal  protection  provision,  138,  140. 

Taxes   as  operating  expenses,   171. 

TENTH  AMENDMENT. 

Reserved  rights  under,  12,  note. 

TERMINAL  PROPERTY. 

Uncalled  for  expenditures,   167,   157. 

TERMINAL  SERVICES  AND  CHARGES. 
State  and  federal  regulation,  20. 

TERRITORIES. 

General  power  of  Congress,  31,  42. 

Power  of  Congress  over  commerce,  1,  note. 

Restraints  upon  Congress,  101. 

Local  self-government,  30,  note,  42. 

Possess  only  powers  bestowed  upon  them,  196,  note. 

TESTIMONY. 

Compulsory  self-incrimination,  212. 
Confronting  witnesses,   214. 
Securing  witnesses,  214. 

THROUGH  RATES. 

Under  federal  control,  7,  10,  12,  19. 

TOP-KNOTS. 

Swift  on,  128,  note. 

TRIAL. 

See  Due  Process  Clauses;  Enforcement  of  Law. 

TWICE  IN  JEOPARDY,  208. 


440  INDEX. 

REFEBENCES  ABE  TO   SECTIONS. 

UNNECESSARY  GOVERNMENTAL  ACTION. 
Judicial  inquiry  into  necessity,  106. 

UNREASONABLE  RATES, 

See  Reasonable  Rates. 

UNREASONABLE  SEARCHES  AND  SEIZURES,  213. 

UNUSED  PROPERTY,  157. 

VALUATION. 

Present  value  the  test,  155,   158,   170,   183. 

Cost  and  capitalization  not  considered,  156,  163,  168. 

Market  value,  161,  162,  163,  168,  174. 

Producing  plant  equally  efficient,  157. 

Cost  of  reproduction,  157,  170. 

Tangible  property,  159,  183. 

Average  price,  158. 

Cost  of  creating  corporation,   160. 

Cost  of  creating  clientage,   161. 

Capitalization  of  earning  capacity,   162,   168,   174. 

Value  as  system,  164. 

Unprofitable  parts  of  property,  157,  167. 

Rough  estimates  sometimes  sufficient,  169. 

See  also  Appobtionment  of  Valuation,  Depbeciation. 

VESTED  RIGHTS. 

Extent  of  constitutional  protection,   102,  note. 

VETO  POWER. 

Of  governor,  28. 

Of  king,  31. 

Courts  have  none  over  legislation,  94,  97. 

WAIVER  OF  CONSTITUTIONAL  PROTECTION,  22. 

WATERWAYS. 

See  Continuous  Highways. 

WHARFAGE,  20. 

State  and  federal  regulation,  16,  20. 

WISDOM  OR  JUSTICE. 

Power  of  court  to  pass  upon,  95. 


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